Notification and Defense of Claims. The Indemnitee agrees promptly to notify the Indemnitors in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but the failure so to notify the Indemnitors will not relieve the Indemnitors from any liability that the Indemnitors may have to Indemnitee under this Agreement unless the Indemnitors are materially prejudiced thereby. With respect to any such Proceeding as to which Indemnitee notifies the Indemnitors of the commencement thereof: (A) The Indemnitors will be entitled to participate therein at their own expense. (B) Except as otherwise provided below, the Indemnitors will be entitled to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Indemnitors to Indemnitee of the Indemnitors’ election so to assume the defense thereof, the Indemnitors will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors of the Indemnitors’ assumption of the defense thereof shall be at the expense of Indemnitee unless (a) the employment by counsel by Indemnitee has been authorized by the Indemnitors, (b) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitors and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the Indemnitors. The Indemnitors shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Indemnitors, or as to which Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) above. (C) The Indemnitors shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action or claim effected without the Indemnitors’ written consent. The Indemnitors shall not settle any action or claim in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s written consent. Neither the Indemnitors nor Indemnitee will unreasonably withhold or delay consent to any proposed settlement.
Appears in 31 contracts
Samples: Indemnification Agreement (CubeSmart, L.P.), Indemnification Agreement (Kite Realty Group, L.P.), Indemnification Agreement (U-Store-It Trust)
Notification and Defense of Claims. The Indemnitee agrees promptly to notify the Indemnitors Indemnitor in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but the failure so to notify the Indemnitors Indemnitor will not relieve the Indemnitors Indemnitor from any liability that the Indemnitors Indemnitor may have to Indemnitee under this Agreement unless the Indemnitors are Indemnitor is materially prejudiced thereby. With respect to any such Proceeding as to which Indemnitee notifies the Indemnitors Indemnitor of the commencement thereof:
(A) The Indemnitors Indemnitor will be entitled to participate therein at their its own expense.
(B) Except as otherwise provided below, the Indemnitors Indemnitor will be entitled to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Indemnitors Indemnitor to Indemnitee of the Indemnitors’ Indemnitor’s election so to assume the defense thereof, the Indemnitors Indemnitor will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors Indemnitor of the Indemnitors’ Indemnitor’s assumption of the defense thereof shall be at the expense of Indemnitee unless (a) the employment by of counsel by the Indemnitee has been authorized by the IndemnitorsIndemnitor, (b) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitors Indemnitor and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors Indemnitor could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors Indemnitor shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the IndemnitorsIndemnitor. The Indemnitors Indemnitor shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the IndemnitorsIndemnitor, or as to which the Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against the Indemnitee of the type referred to in clause (c) above.
(C) The Indemnitors Indemnitor shall not be liable to indemnify the Indemnitee under this Agreement for any amounts paid in settlement of any action or claim effected without the Indemnitors’ Indemnitor’s written consent. The Indemnitors Indemnitor shall not settle any action or claim in any manner that would impose any penalty or limitation on the Indemnitee without the Indemnitee’s written consent. Neither the Indemnitors Indemnitor nor Indemnitee will unreasonably withhold or delay consent to any proposed settlement.
Appears in 28 contracts
Samples: Indemnification Agreement (Walker & Dunlop, Inc.), Indemnification Agreement (American Homes 4 Rent), Indemnification Agreement (Walker & Dunlop, Inc.)
Notification and Defense of Claims. The Indemnitee agrees promptly to notify the Indemnitors Indemnitor in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but the failure so to notify the Indemnitors Indemnitor will not relieve the Indemnitors Indemnitor from any liability that the Indemnitors Indemnitor may have to Indemnitee under this Agreement unless the Indemnitors are materially prejudiced therebyIndemnitor can establish that such omission to notify resulted in actual and material prejudice to which it cannot be reversed or otherwise eliminated without any material adverse effect on the Indemnitor. With respect to any such Proceeding as to which Indemnitee notifies the Indemnitors Indemnitor of the commencement thereof:
(A) The Indemnitors Indemnitor will be entitled to participate therein at their its own expense.
(B) Except as otherwise provided below, the Indemnitors Indemnitor will be entitled to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Indemnitors Indemnitor to Indemnitee of the Indemnitors’ Indemnitor’s election so to assume the defense thereof, the Indemnitors Indemnitor will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. The Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors Indemnitor of the Indemnitors’ Indemnitor’s assumption of the defense thereof shall be at the expense of Indemnitee unless (a) the employment by of counsel by the Indemnitee has been authorized by the IndemnitorsIndemnitor, (b) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitors Indemnitor and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors Indemnitor could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors Indemnitor shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the IndemnitorsIndemnitor. The Indemnitors Indemnitor shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the IndemnitorsIndemnitor, or as to which the Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against the Indemnitee of the type referred to in clause (c) above.
(C) The Indemnitors Indemnitor shall not be liable to indemnify the Indemnitee under this Agreement for any amounts paid in settlement of any action or claim effected without the Indemnitors’ Indemnitor’s written consent. The Indemnitors Indemnitor shall not settle any action or claim in any manner that would impose any penalty or limitation on the Indemnitee without the Indemnitee’s written consent. Neither the Indemnitors Indemnitor nor Indemnitee will unreasonably withhold or delay consent to any proposed settlement.
Appears in 23 contracts
Samples: Indemnification Agreement (Ps Business Parks Inc/Ca), Indemnification Agreement (QTS Realty Trust, Inc.), Indemnification Agreement (QualityTech, LP)
Notification and Defense of Claims. The Indemnitee agrees promptly to notify the Indemnitors Indemnitor in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but the failure so to notify the Indemnitors Indemnitor will not relieve the Indemnitors Indemnitor from any liability that the Indemnitors Indemnitor may have to Indemnitee under this Agreement unless the Indemnitors are Indemnitor is materially prejudiced thereby. With respect to any such Proceeding as to which Indemnitee notifies the Indemnitors Indemnitor of the commencement thereof:
(Aa) The Indemnitors Indemnitor will be entitled to participate therein at their its own expense.
(Bb) Except as otherwise provided below, the Indemnitors Indemnitor will be entitled to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Indemnitors Indemnitor to Indemnitee of the Indemnitors’ Indemnitor’s election so to assume the defense thereof, the Indemnitors Indemnitor will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors Indemnitor of the Indemnitors’ Indemnitor’s assumption of the defense thereof shall be at the expense of Indemnitee unless (a) the employment by of counsel by Indemnitee has been authorized by the IndemnitorsIndemnitor, (b) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitors Indemnitor and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors Indemnitor could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors Indemnitor shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the IndemnitorsIndemnitor. The Indemnitors Indemnitor shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the IndemnitorsIndemnitor, or as to which Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) above.
(Cc) The Indemnitors Indemnitor shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action or claim effected without the Indemnitors’ Indemnitor’s written consent. The Indemnitors Indemnitor shall not settle any action or claim in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s written consent. Neither the Indemnitors Indemnitor nor Indemnitee will unreasonably withhold or delay consent to any proposed settlement.
Appears in 19 contracts
Samples: Indemnification Agreement (Sky Harbour Group Corp), Indemnification Agreement (Freehold Properties, Inc.), Indemnification Agreement (Farmland Partners Inc.)
Notification and Defense of Claims. The Indemnitee agrees promptly to notify the Indemnitors in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but the failure so to notify the Indemnitors will not relieve the Indemnitors from any liability that the Indemnitors may have to Indemnitee under this Agreement unless the Indemnitors are materially prejudiced thereby. With respect to any such Proceeding as to which Indemnitee notifies the Indemnitors of the commencement thereof:
(A) The Indemnitors will be entitled to participate therein at their own expense.
(B) Except as otherwise provided below, the Indemnitors will be entitled to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Indemnitors to Indemnitee of the Indemnitors’ ' election so to assume the defense thereof, the Indemnitors will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s 's own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors of the Indemnitors’ ' assumption of the defense thereof shall be at the expense of Indemnitee unless (a) the employment by counsel by Indemnitee has been authorized by the Indemnitors, (b) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitors and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the Indemnitors. The Indemnitors shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Indemnitors, or as to which Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) above.
(C) The Indemnitors shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action or claim effected without the Indemnitors’ ' written consent. The Indemnitors shall not settle any action or claim in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s 's written consent. Neither the Indemnitors nor Indemnitee will unreasonably withhold or delay consent to any proposed settlement.
Appears in 17 contracts
Samples: Indemnification Agreement (Kite Realty Group, L.P.), Indemnification Agreement (Kite Realty Group, L.P.), Indemnification Agreement (Kite Realty Group, L.P.)
Notification and Defense of Claims. The Promptly after receipt by the Indemnitee agrees promptly of notice of the commencement of any action, suit or proceeding as to notify which the Indemnitors in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating Indemnitee may reasonably be expected to any Proceeding or matter which may be subject to seek indemnification or advancement of Expenses covered hereunderexpenses under this Agreement, but the Indemnitee shall notify the Company of such event. However, the failure so by the Indemnitee to timely notify the Indemnitors will Company of any action, suit or proceeding referred to in Section 2(a) or 2(b) or any claim referred in Section 3 for which Indemnitee seeks or may seek indemnification or advancement of expenses under this Agreement, shall not relieve the Indemnitors Company from any liability that hereunder unless, and only to the Indemnitors may have to Indemnitee under this Agreement unless extent that, the Indemnitors are materially prejudiced therebyCompany did not otherwise learn of such action, suit, proceeding or claim and such failure results in forfeiture by the Company of substantial defenses, rights or insurance coverage. With respect to any such Proceeding as to which Indemnitee notifies the Indemnitors of the commencement thereof:
(A) The Indemnitors will Company shall be entitled to participate therein at their own expense.
(Bin the defense of any action, suit or proceeding referred to in Section 2(a) Except as otherwise provided below, the Indemnitors will be entitled or 2(b) or any claim referred to in Section 3 for which Indemnitee seeks or may seek indemnification or advancement of expenses under this Agreement or to assume the defense thereof, with counsel reasonably satisfactory to the Indemnitee; provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with an actual or potential conflict, (b) the named parties in any such action, suit, proceeding or claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee shall conclude that there may be one or more legal defenses available to him that are different from or in addition to those available to the Company, or (c) any such representation by such counsel would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee shall be entitled to retain separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular action, suit, proceeding or claim) at the Company's expense. After notice from the Indemnitors to Indemnitee of the Indemnitors’ election so to assume the defense thereof, the Indemnitors will The Company shall not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors of the Indemnitors’ assumption of the defense thereof shall be at the expense of Indemnitee unless (a) the employment by counsel by Indemnitee has been authorized by the Indemnitors, (b) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitors and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the Indemnitors. The Indemnitors shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Indemnitors, or as to which Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) above.
(C) The Indemnitors shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action threatened or pending action, suit, proceeding or claim effected without the Indemnitors’ Company's prior written consent. The Indemnitors shall If the Company has assumed the defense of an action, suit, proceeding or claim as provided in this Section 6(b), the Company may defend or settle the action, suit, proceeding or claim as it deems appropriate; provided, however, that the Company may not settle any action action, suit, proceeding or claim claim, without the prior written consent of the Indemnitee, in any a manner that would impose any penalty or limitation on the Indemnitee without Indemnitee’s written consentother than monetary obligations that are indemnifiable by the Company under this Agreement. Neither the Indemnitors Company nor Indemnitee will shall unreasonably withhold or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.
Appears in 11 contracts
Samples: Director Indemnification Agreement (Oglebay Norton Co /Ohio/), Officer Indemnification Agreement (Oglebay Norton Co /Ohio/), Director Indemnification Agreement (Oglebay Norton Co /Ohio/)
Notification and Defense of Claims. The Indemnitee agrees promptly to notify the Indemnitors Indemnitor in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but the failure so to notify the Indemnitors Indemnitor will not relieve the Indemnitors Indemnitor from any liability that the Indemnitors Indemnitor may have to Indemnitee under this Agreement unless the Indemnitors are Indemnitor is materially prejudiced thereby. With respect to any such Proceeding as to which Indemnitee notifies the Indemnitors Indemnitor of the commencement thereof:
(A) The Indemnitors Indemnitor will be entitled to participate therein at their its own expense.
(B) Except as otherwise provided below, the Indemnitors Indemnitor will be entitled to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Indemnitors Indemnitor to Indemnitee of the Indemnitors’ Indemnitor’s election so to assume the defense thereof, the Indemnitors Indemnitor will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors Indemnitor of the Indemnitors’ Indemnitor’s assumption of the defense thereof shall be at the expense of Indemnitee unless (a) the employment by counsel by Indemnitee has been authorized by the IndemnitorsIndemnitor, (b) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitors Indemnitor and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors Indemnitor could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors Indemnitor shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the IndemnitorsIndemnitor. The Indemnitors Indemnitor shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the IndemnitorsIndemnitor, or as to which Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) above.
(C) The Indemnitors Indemnitor shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action or claim effected without the Indemnitors’ Indemnitor’s written consent. The Indemnitors Indemnitor shall not settle any action or claim in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s written consent. Neither the Indemnitors Indemnitor nor Indemnitee will unreasonably withhold or delay consent to any proposed settlement.
Appears in 9 contracts
Samples: Indemnification Agreement (Colony Financial, Inc.), Indemnification Agreement (Colony Financial, Inc.), Indemnification Agreement (Colony Financial, Inc.)
Notification and Defense of Claims. The Indemnitee agrees promptly to notify the Indemnitors Indemnitor in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but the failure so to notify the Indemnitors Indemnitor will not relieve the Indemnitors Indemnitor from any liability that the Indemnitors Indemnitor may have to Indemnitee under this Agreement unless the Indemnitors are materially prejudiced therebyIndemnitor can establish that such omission to notify resulted in actual and material prejudice to which it cannot be reversed or otherwise eliminated without any material negative effect on the Indemnitor. With respect to any such Proceeding as to which Indemnitee notifies the Indemnitors Indemnitor of the commencement thereof:
(A) The Indemnitors Indemnitor will be entitled to participate therein at their its own expense.
(B) Except as otherwise provided below, the Indemnitors Indemnitor will be entitled to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Indemnitors Indemnitor to Indemnitee of the Indemnitors’ Indemnitor’s election so to assume the defense thereof, the Indemnitors Indemnitor will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors Indemnitor of the Indemnitors’ Indemnitor’s assumption of the defense thereof shall be at the expense of Indemnitee unless (a) the employment by of counsel by the Indemnitee has been authorized by the IndemnitorsIndemnitor, (b) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitors Indemnitor and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors Indemnitor could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors Indemnitor shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the IndemnitorsIndemnitor. The Indemnitors Indemnitor shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the IndemnitorsIndemnitor, or as to which the Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against the Indemnitee of the type referred to in clause (c) above.
(C) The Indemnitors Indemnitor shall not be liable to indemnify the Indemnitee under this Agreement for any amounts paid in settlement of any action or claim effected without the Indemnitors’ Indemnitor’s written consent. The Indemnitors Indemnitor shall not settle any action or claim in any manner that would impose any penalty or limitation on the Indemnitee without the Indemnitee’s written consent. Neither the Indemnitors Indemnitor nor Indemnitee will unreasonably withhold or delay consent to any proposed settlement.
Appears in 7 contracts
Samples: Indemnification Agreement (Ashford Hospitality Prime, Inc.), Indemnification Agreement (Ashford Hospitality Trust Inc), Indemnification Agreement (Ashford Hospitality Prime, Inc.)
Notification and Defense of Claims. The (a) If Indemnitee agrees promptly to notify receives notice, otherwise than from the Indemnitors in writing upon being served with any summonsCompany, citation, subpoena, complaint, indictment, informationthat Indemnitee is or will be made, or other document relating is threatened to be made, a party to any Proceeding or matter in respect of which may be subject Indemnitee intends to seek indemnification or advancement of Expenses covered hereunder, but the failure so to Indemnitee must promptly notify the Indemnitors Company in writing of the nature and, to Indemnitee's knowledge, status of that Proceeding. If this Section 4(a) requires Indemnitee to give such a notice, but Indemnitee fails to do so, that failure will not relieve the Indemnitors from any liability that Company from, or otherwise affect, the Indemnitors obligations the Partnership may have to indemnify Indemnitee under this Agreement Agreement, unless the Indemnitors are materially prejudiced thereby. With Company can establish that the failure has resulted in actual prejudice to the Company.
(b) Except as this Section 4(b) otherwise provides below, in the case of any Proceeding in respect to any such Proceeding as to of which Indemnitee notifies the Indemnitors of the commencement thereofseeks indemnification hereunder:
(A1) The Indemnitors the Company and any Related Enterprise that also may be obligated to indemnify Indemnitee in respect of that Proceeding will be entitled to participate therein at their its own expense.expense in that Proceeding;
(B2) Except as otherwise provided belowthe Company or that Related Enterprise, the Indemnitors or either of them, will be entitled to assume the defense thereofof all Claims, with counsel other than (A) Company Claims, if any, and (B) other Claims, if any, as to which Indemnitee shall reasonably satisfactory reach the conclusion clause (3) of the next sentence describes, in that Proceeding against Indemnitee by prompt written notice of that election to Indemnitee. After notice from ; and
(3) if clause (2) above entitles the Indemnitors to Indemnitee of the Indemnitors’ election so Company or that Related Enterprise to assume the defense thereofof any of those Claims and it delivers to Indemnitee notice of that assumption under clause (2), the Indemnitors Company will not be liable to Indemnitee under this Agreement hereunder for any fees or expenses of legal or other expenses subsequently incurred by counsel for Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided belowwhich Indemnitee incurs after Indemnitee receives that notice. Indemnitee shall will have the right to employ Indemnitee’s 's own legal counsel in such that Proceeding, but but, as clause (3) of the preceding sentence provides, will bear the fees and disbursements expenses of such that counsel incurred after notice from the Indemnitors of the Indemnitors’ assumption of the defense thereof shall be at the expense of Indemnitee unless unless:
(a1) the employment by counsel by Company has authorized Indemnitee has been authorized by the Indemnitors, in writing to retain that counsel;
(b2) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitors and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors Company shall not in fact within a reasonable period of time actually have employed counsel to assume the defense of such action, in each those Claims; or
(3) Indemnitee shall have (A) reasonably concluded that a conflict of which cases interest may exist between Indemnitee and the fees and disbursements of counsel shall be at the expense of the Indemnitors. The Indemnitors shall not be entitled Company as to assume the defense of any Proceeding brought by one or on behalf more of those Claims and (B) communicated that conclusion to the Indemnitors, or as to which Indemnitee shall have reached the conclusion specified Company in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause writing.
(c) above.
(C) The Indemnitors shall Partnership will not be liable obligated hereunder to, or to cause another Partnership Entity to, indemnify Indemnitee under this Agreement for against or hold Indemnitee harmless from and in respect of any amounts paid paid, or agreed to be paid, by Indemnitee in settlement of any action or claim effected Claim against Indemnitee which Indemnitee effects without the Indemnitors’ Company's prior written consent. The Indemnitors shall Company will not settle any action or claim Claim against Indemnitee in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s 's prior written consent. Neither the Indemnitors Company nor Indemnitee will unreasonably delay or withhold or delay consent to any proposed settlementsuch settlement the other party proposes to effect.
Appears in 6 contracts
Samples: Indemnification Agreement (K-Sea Transportation Partners Lp), Indemnification Agreement (K-Sea Transportation Partners Lp), Indemnification Agreement (K-Sea Transportation Partners Lp)
Notification and Defense of Claims. The Indemnitee agrees promptly (a) A party entitled to be indemnified pursuant to Section 12.1 or Section 12.2 (the "Indemnified Party") shall notify the Indemnitors party liable for such indemnification (the "Indemnifying Party") in writing upon being served of any claim or demand which the Indemnified Party has determined has given or could give rise to a right of indemnification under this Agreement, as soon as possible after the Indemnified Party becomes aware of such claim or demand; provided, that the Indemnified Party's failure to give such notice to the Indemnifying Party in a timely fashion shall not result in the loss of the Indemnified Party's rights with respect thereto except to the extent the Indemnified Party is materially prejudiced by the delay. If the Indemnified Party shall notify the Indemnifying Party of any summonsclaim or demand pursuant to the provisions hereof, citationand if such claim or demand relates to a claim or demand asserted by a third party against the Indemnified Party (a "Third Party Claim"), subpoena, complaint, indictment, informationthe Indemnifying Party shall have the obligation either (i) to pay such claim or demand, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but the failure so to notify the Indemnitors will not relieve the Indemnitors from any liability that the Indemnitors may have to Indemnitee under this Agreement unless the Indemnitors are materially prejudiced thereby. With respect to (ii) defend any such Proceeding as to which Indemnitee notifies the Indemnitors of the commencement thereof:
(A) The Indemnitors will be entitled to participate therein at their own expense.
(B) Except as otherwise provided below, the Indemnitors will be entitled to assume the defense thereof, Third Party Claim with counsel reasonably satisfactory to Indemniteethe Indemnified Party. After notice from the Indemnitors to Indemnitee of the Indemnitors’ election so to assume Indemnifying Party has assumed the defense thereofof such Third Party Claim, the Indemnitors will Indemnifying Party shall not be liable to Indemnitee the Indemnified Party under this Agreement Section 12 for any legal or other expenses subsequently incurred by Indemnitee the Indemnified Party in connection with the defense thereof other than reasonable costs of investigation or as otherwise investigation, provided below. Indemnitee that the Indemnified Party shall have the right to employ Indemnitee’s own counsel counsel, at the Indemnifying Party's expense, to represent it if (A) in such Proceeding, but the fees and disbursements Indemnified Party's reasonable opinion the Indemnifying Party is not diligently prosecuting the defense of such counsel incurred after notice from Third Party Claim, (B) such Third Party Claim involves remedies other than monetary damages and such remedies, in the Indemnitors of the Indemnitors’ assumption of the defense thereof shall be at the expense of Indemnitee unless Indemnified Party's reasonable judgment, could have a material adverse effect on such Indemnified Party, (aC) the employment by counsel by Indemnitee has been authorized Indemnified Party may have available to it one or more defenses or counterclaims that are inconsistent with one or more defenses or counterclaims that may be alleged by the IndemnitorsIndemnifying Party, or (bD) the Indemnitee shall have reasonably concluded Indemnified Party believes in its reasonable discretion that there may be a conflict of interest exists between the Indemnitors Indemnifying Party and the Indemnitee Indemnified Party with respect to such Third-Party Claim or action, and in any such event the reasonable fees and expenses of such separate counsel for the Indemnified Party shall be paid by the Indemnifying Party. The Indemnified Party shall make available to the Indemnifying Party or its agents all records and other materials in the conduct Indemnified Party's possession reasonably required by it for its use in contesting any Third-Party Claim or demand.
(b) No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent of the Indemnifying Party, unless (i) the Indemnifying Party fails to assume and diligently prosecuting the defense of such action, claim or (cii) such Proceeding seeks penalties settlement, compromise or other relief against consent includes an unconditional release of the Indemnitee Indemnifying Party from all liability arising out of such claim and does not contain any equitable order, judgment or term which includes any admission of wrongdoing or could result in any liability (including regulatory liability) of the Indemnifying Party or which would otherwise in any manner affect, restrain or interfere with the business of the Indemnifying Party or any Affiliate of the Indemnifying Party. An Indemnifying Party may not, without the prior written consent of the Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless such settlement, compromise or consent includes an unconditional release of the Indemnitors could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors shall not in fact have employed counsel to assume the defense Indemnified Party from all liability arising out of such actionclaim and does not contain any equitable order, judgment or term which includes any admission of wrongdoing or could result in each of which cases the fees and disbursements of counsel shall be at the expense any liability (including regulatory liability) of the Indemnitors. The Indemnitors shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Indemnitors, or as to which Indemnitee shall have reached the conclusion specified in clause (b) above, Indemnified Party or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) above.
(C) The Indemnitors shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action or claim effected without the Indemnitors’ written consent. The Indemnitors shall not settle any action or claim would otherwise in any manner that would impose affect, restrain or interfere with the business of the Indemnified Party or any penalty or limitation on Indemnitee without Indemnitee’s written consent. Neither of the Indemnitors nor Indemnitee will unreasonably withhold or delay consent to any proposed settlementIndemnified Party's Affiliates.
Appears in 4 contracts
Samples: Purchase and Sale Agreement (Medical Properties Trust Inc), Purchase and Sale Agreement (Medical Properties Trust Inc), Purchase and Sale Agreement (Medical Properties Trust Inc)
Notification and Defense of Claims. The Indemnitee agrees promptly to notify the Indemnitors Company in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but the failure so to notify the Indemnitors Company will not relieve the Indemnitors Company from any liability that the Indemnitors Company may have to Indemnitee under this Agreement unless the Indemnitors are Company is materially prejudiced thereby. With respect to any such Proceeding as to which Indemnitee notifies the Indemnitors Company of the commencement thereof:
(A) The Indemnitors Company will be entitled to participate therein at their own expense.
(B) Except as otherwise provided below, the Indemnitors Company will be entitled to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Indemnitors Company to Indemnitee of the Indemnitors’ Company's election so to assume the defense thereof, the Indemnitors Company will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s 's own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors Company of the Indemnitors’ Company's assumption of the defense thereof shall be at the expense of Indemnitee unless (a) the employment by of counsel by Indemnitee has been authorized by the IndemnitorsCompany, (b) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitors Company and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors Company could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors Company shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the IndemnitorsCompany. The Indemnitors Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the IndemnitorsCompany, or as to which Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) above.
(C) The Indemnitors Company shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action or claim effected without the Indemnitors’ Company's written consent. The Indemnitors Company shall not settle any action or claim in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s 's written consent. Neither the Indemnitors Company nor Indemnitee will unreasonably withhold or delay consent to any proposed settlement.
Appears in 4 contracts
Samples: Indemnification Agreement (American Community Properties Trust), Indemnification Agreement (American Community Properties Trust), Indemnification Agreement (American Community Properties Trust)
Notification and Defense of Claims. The Indemnitee agrees promptly to notify the Indemnitors Indemnitor in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but the failure so to notify the Indemnitors Indemnitor will not relieve the Indemnitors Indemnitor from any liability that the Indemnitors Indemnitor may have to Indemnitee under this Agreement unless the Indemnitors are Indemnitor is materially prejudiced thereby. With respect to any such Proceeding as to which Indemnitee notifies the Indemnitors Indemnitor of the commencement thereof::
(Aa) The Indemnitors Indemnitor will be entitled to participate therein at their its own expense.
(Bb) Except as otherwise provided below, the Indemnitors Indemnitor will be entitled to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Indemnitors Indemnitor to Indemnitee of the Indemnitors’ Indemnitor’s election so to assume the defense thereof, the Indemnitors Indemnitor will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ IndemniteeXxxxxxxxxx’s own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors Indemnitor of the Indemnitors’ Indemnitor’s assumption of the defense thereof shall be at the expense of Indemnitee unless (a) the employment by of counsel by Indemnitee has been authorized by the IndemnitorsIndemnitor, (b) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitors Indemnitor and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors Indemnitor could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors Indemnitor shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the IndemnitorsIndemnitor. The Indemnitors Indemnitor shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the IndemnitorsIndemnitor, or as to which Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) above.
(Cc) The Indemnitors Indemnitor shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action or claim effected without the Indemnitors’ Indemnitor’s written consent. The Indemnitors Indemnitor shall not settle any action or claim in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s written consent. Neither the Indemnitors Indemnitor nor Indemnitee will unreasonably withhold or delay consent to any proposed settlement.
Appears in 3 contracts
Samples: Indemnification Agreement (Farmland Partners Inc.), Indemnification Agreement (Farmland Partners Inc.), Indemnification Agreement (Farmland Partners Inc.)
Notification and Defense of Claims. The (a) If Indemnitee agrees promptly to notify receives notice, otherwise than from the Indemnitors in writing upon being served with any summonsCompany, citation, subpoena, complaint, indictment, informationthat Indemnitee is or will be made, or other document relating is threatened to be made, a party to any Proceeding or matter in respect of which may be subject Indemnitee intends to seek indemnification or advancement of Expenses covered hereunder, but the failure so to Indemnitee must promptly notify the Indemnitors Company in writing of the nature and, to Indemnitee’s knowledge, status of that Proceeding. If this Section 4(a) requires Indemnitee to give such a notice, but Indemnitee fails to do so, that failure will not relieve the Indemnitors from any liability that Company from, or otherwise affect, the Indemnitors obligations the Partnership may have to indemnify Indemnitee under this Agreement Agreement, unless the Indemnitors are materially prejudiced thereby. With Company can establish that the failure has resulted in actual prejudice to the Company.
(b) Except as this Section 4(b) otherwise provides below, in the case of any Proceeding in respect to any such Proceeding as to of which Indemnitee notifies the Indemnitors of the commencement thereofseeks indemnification hereunder:
(A1) The Indemnitors the Company and any Related Enterprise that also may be obligated to indemnify Indemnitee in respect of that Proceeding will be entitled to participate therein at their its own expense.expense in that Proceeding;
(B2) Except as otherwise provided belowthe Company or that Related Enterprise, the Indemnitors or either of them, will be entitled to assume the defense thereofof all Claims, with counsel other than (A) Company Claims, if any, and (B) other Claims, if any, as to which Indemnitee shall reasonably satisfactory reach the conclusion clause (3) of the next sentence describes, in that Proceeding against Indemnitee by prompt written notice of that election to Indemnitee. After notice from ; and
(3) if clause (2) above entitles the Indemnitors to Indemnitee of the Indemnitors’ election so Company or that Related Enterprise to assume the defense thereofof any of those Claims and it delivers to Indemnitee notice of that assumption under clause (2), the Indemnitors Company will not be liable to Indemnitee under this Agreement hereunder for any fees or expenses of legal or other expenses subsequently incurred by counsel for Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided belowwhich Indemnitee incurs after Indemnitee receives that notice. Indemnitee shall will have the right to employ Indemnitee’s own legal counsel in such that Proceeding, but but, as clause (3) of the preceding sentence provides, will bear the fees and disbursements expenses of such that counsel incurred after notice from the Indemnitors of the Indemnitors’ assumption of the defense thereof shall be at the expense of Indemnitee unless unless:
(a1) the employment by counsel by Company has authorized Indemnitee has been authorized by the Indemnitors, in writing to retain that counsel;
(b2) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitors and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors Company shall not in fact within a reasonable period of time actually have employed counsel to assume the defense of such action, in each those Claims; or
(3) Indemnitee shall have (A) reasonably concluded that a conflict of which cases interest may exist between Indemnitee and the fees and disbursements of counsel shall be at the expense of the Indemnitors. The Indemnitors shall not be entitled Company as to assume the defense of any Proceeding brought by one or on behalf more of those Claims and (B) communicated that conclusion to the Indemnitors, or as to which Indemnitee shall have reached the conclusion specified Company in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause writing.
(c) above.
(C) The Indemnitors shall Partnership will not be liable obligated hereunder to, or to cause another Partnership Entity to, indemnify Indemnitee under this Agreement for against or hold Indemnitee harmless from and in respect of any amounts paid paid, or agreed to be paid, by Indemnitee in settlement of any action or claim effected Claim against Indemnitee which Indemnitee effects without the Indemnitors’ Company’s prior written consent. The Indemnitors shall Company will not settle any action or claim Claim against Indemnitee in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s prior written consent. Neither the Indemnitors Company nor Indemnitee will unreasonably delay or withhold or delay consent to any proposed settlementsuch settlement the other party proposes to effect.
Appears in 3 contracts
Samples: Indemnification Agreement (K-Sea GP Holdings LP), Indemnification Agreement (K-Sea Transportation Partners Lp), Indemnification Agreement (K-Sea Tranportation Partners Lp)
Notification and Defense of Claims. The (a) Promptly after receipt by Indemnitee agrees promptly of notice of the commencement of any action, suit or proceeding, Indemnitee will, if a claim in respect thereto is to be made against the Corporation under this Agreement, notify the Indemnitors in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement Corporation of Expenses covered hereunder, but the commencement thereof. The failure so to notify the Indemnitors Corporation will not relieve the Indemnitors Corporation from any liability that the Indemnitors which it may have to Indemnitee otherwise than under this Agreement unless the Indemnitors are materially prejudiced therebyAgreement. With respect to any such Proceeding action, suit or proceeding as to which Indemnitee so notifies the Indemnitors of Corporation: (i) the commencement thereof:
(A) The Indemnitors Corporation will be entitled to participate therein at their its own expense.
; and (Bii) Except except as otherwise provided below, to the Indemnitors will be entitled to extent that it may wish, the Corporation may assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. .
(b) After notice from the Indemnitors Corporation to Indemnitee of the Indemnitors’ its election so to assume the defense thereof, the Indemnitors Corporation will not be liable to Indemnitee under this Agreement or otherwise for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel of his choosing in such Proceedingaction, suit or proceeding but the fees and disbursements expenses of such counsel incurred after notice from the Indemnitors Corporation of the Indemnitors’ its assumption of the defense thereof shall be at the expense of Indemnitee unless (ai) the employment by of counsel by Indemnitee has been authorized in writing by the IndemnitorsCorporation, (bii) the Corporation and Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitors Corporation and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (diii) the Indemnitors Corporation shall not in fact have employed failed or refused to employ counsel to assume the defense of such action, in each of which cases the reasonable fees and disbursements expenses of Indemnitee's counsel shall be at paid by the expense of the Indemnitors. The Indemnitors shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Indemnitors, or as to which Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause Corporation.
(c) above.
(C) The Indemnitors Corporation shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action threatened or claim effected pending action, suit or proceeding without the Indemnitors’ its prior written consent. The Indemnitors Corporation shall not settle any action such action, suit or claim proceeding in any manner that which would impose any penalty or limitation on Indemnitee without Indemnitee’s 's prior written consent. Neither the Indemnitors Corporation nor Indemnitee will unreasonably withhold his or delay its consent to any proposed settlement.
Appears in 3 contracts
Samples: Indemnification Agreement (Immucor Inc), Employment Agreement (Immucor Inc), Indemnification Agreement (Immucor Inc)
Notification and Defense of Claims. The 6.1 Indemnitee agrees promptly to notify the Indemnitors shall give notice in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to the Company as soon as practicable after Indemnitee becomes aware of any Proceeding with respect to which indemnification will or matter which may could be subject sought under this Agreement; provided that Indemnitee’s failure to provide prompt notice of such claim for indemnification or advancement of Expenses covered hereunder, but to the failure so to notify the Indemnitors will Company shall not relieve the Indemnitors from any liability Company of its indemnification obligations hereunder unless, and only to the extent that, such delay in notification to the Company has resulted in prejudice to the Company in the Proceeding; and provided further, that the Indemnitors failure of Indemnitee to give such notice shall not relieve the Company of any obligations it may have to Indemnitee otherwise than under this Agreement unless Agreement.
6.2 In the Indemnitors are materially prejudiced thereby. With respect to event any such Proceeding as to which Indemnitee notifies is by or in the Indemnitors right of the commencement thereof:
(A) The Indemnitors will be entitled to participate therein Company or any Subsidiary, Indemnitee may, at their own expense.
(B) Except as otherwise provided belowthe option of Indemnitee, the Indemnitors will be entitled to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Indemnitors to Indemnitee of the Indemnitors’ election so to assume the defense thereof, the Indemnitors will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with either control the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors of the Indemnitors’ assumption of accept the defense thereof shall be at provided under the expense of D&O Insurance; provided, however, that Indemnitee unless (a) may not control the employment by counsel by Indemnitee has been authorized defense if such decision would affect the coverage provided by the IndemnitorsD&O Insurance, (b) if any, to Indemnitee, the Indemnitee shall have reasonably concluded that there may be a conflict of interest between Company, any Subsidiary or the Indemnitors other Directors and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the IndemnitorsOfficers covered thereby. The Indemnitors Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf in the right of the IndemnitorsCompany or any Subsidiary.
6.3 In the event any Proceeding is other than by or in the right of the Company or any Subsidiary, the Company shall be entitled to participate therein at its own expense. Except as otherwise provided below, at the option of the Company, the Company, alone or as jointly with any other notified indemnifying party, shall be entitled to assume the defense of any such Proceeding of which Indemnitee shall have reached notifies the conclusion specified in clause (b) aboveCompany, or which involves penalties or other relief against with counsel mutually acceptable to the Company and to Indemnitee. After notice from the Company to Indemnitee of the type referred Company’s decision to assume the defense in clause (c) above.
(C) The Indemnitors any Proceeding, the Company shall not be liable to indemnify Indemnitee under this Agreement for any amounts Expenses subsequently incurred by Indemnitee in connection with the defense of the Proceeding other than reasonable costs of investigation, travel expenses or as otherwise provided below. Indemnitee shall have the right to employ counsel in such Proceeding, but the Expenses in connection with employment of such counsel shall be paid by Indemnitee, unless:
(a) the employment of such counsel by Indemnitee has been authorized by the Company;
(b) Indemnitee shall have reasonably concluded, after consultation with counsel selected by Indemnitee, that (i) there may be a conflict of interest between the Company and Indemnitee in the conduct of the defense of such Proceeding, (ii) there may be one or more legal defenses available to Indemnitee that are different from or in addition to those available to the Company, or (iii) Indemnitee has interests in the Proceeding that are different from or in addition to those of other Persons against whom the Proceeding has been brought; or
(c) the Company has not within sixty (60) days after Indemnitee has provided the Company notice of a Proceeding in fact have employed counsel to assume the defense of such Proceeding; in each of which cases the Expenses in connection with such Proceeding shall be paid by the Company; provided, that, the Company shall not be required to pay the Expenses of more than one law firm plus, if applicable, local counsel for all Indemnitees in Indemnitee’s circumstances.
6.4 In no event shall the Company authorize any settlement of any action or claim effected without the Indemnitors’ express prior written consent. The Indemnitors shall not settle consent of Indemnitee, unless such settlement solely involves the payment of money for which Indemnitee is indemnified under this Agreement and includes a complete and unconditional release of the Indemnitee from all liability on any action or claim in any manner claims that would impose any penalty or limitation on Indemnitee without Indemnitee’s written consent. Neither are the Indemnitors nor Indemnitee will unreasonably withhold or delay consent to any proposed settlementsubject matter of such Proceeding.
Appears in 2 contracts
Samples: Indemnification Agreement (Prestige Brands Holdings, Inc.), Indemnification Agreement (Prestige Brands Holdings, Inc.)
Notification and Defense of Claims. The (a) Promptly after receipt by Indemnitee agrees promptly of notice of the commencement of any action, suit or proceeding, Indemnitee will, if a claim in respect thereto is to be made against the Corporation under this Agreement, notify the Indemnitors in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement Corporation of Expenses covered hereunder, but the commencement thereof. The failure so to notify the Indemnitors Corporation will not relieve the Indemnitors Corporation from any liability that the Indemnitors which it may have to Indemnitee otherwise than under this Agreement unless the Indemnitors are materially prejudiced therebyAgreement. With respect to any such Proceeding action, suit or proceeding as to which Indemnitee so notifies the Indemnitors of Corporation: (i) the commencement thereof:
(A) The Indemnitors Corporation will be entitled to participate therein at their its own expense.
; and (Bii) Except except as otherwise provided below, to the Indemnitors will be entitled to extent that it may wish, the Corporation may assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. .
(b) After notice from the Indemnitors Corporation to Indemnitee of the Indemnitors’ its election so to assume the defense thereof, the Indemnitors Corporation will not be liable to Indemnitee under this Agreement or otherwise for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel of his choosing in such Proceedingaction, suit or proceeding but the fees and disbursements expenses of such counsel incurred after notice from the Indemnitors Corporation of the Indemnitors’ its assumption of the defense thereof shall be at the expense of Indemnitee unless (ai) the employment by of counsel by Indemnitee has been authorized in writing by the IndemnitorsCorporation, (bii) the Corporation and Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitors Corporation and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (diii) the Indemnitors Corporation shall not in fact have employed failed or refused to employ counsel to assume the defense of such action, in each of which cases the reasonable fees and disbursements expenses of Indemnitee’s counsel shall be at paid by the expense of the Indemnitors. The Indemnitors shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Indemnitors, or as to which Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause Corporation.
(c) above.
(C) The Indemnitors Corporation shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action threatened or claim effected pending action, suit or proceeding without the Indemnitors’ its prior written consent. The Indemnitors Corporation shall not settle any action such action, suit or claim proceeding in any manner that which would impose any penalty or limitation on Indemnitee without Indemnitee’s prior written consent. Neither the Indemnitors Corporation nor Indemnitee will unreasonably withhold his or delay its consent to any proposed settlement.
Appears in 2 contracts
Samples: Employment Agreement (Immucor Inc), Indemnification Agreement (Immucor Inc)
Notification and Defense of Claims. The Indemnitee agrees promptly to notify the Indemnitors in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but the failure so to notify the Indemnitors will not relieve the Indemnitors from any liability that the Indemnitors may have to Indemnitee under this Agreement unless the Indemnitors are materially prejudiced thereby. With respect to any such Proceeding as to which Indemnitee notifies the Indemnitors of the commencement thereof:
(A) The Indemnitors will be entitled to participate therein at their own expense.
(B) Except as otherwise provided below, the Indemnitors will be entitled to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Indemnitors to Indemnitee of the Indemnitors’ ' election so to assume the defense thereof, the Indemnitors will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s 's own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors of the Indemnitors’ ' assumption of the defense thereof shall be at the expense of Indemnitee unless (a) the employment by of counsel by the Indemnitee has been authorized by the Indemnitors, (b) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitors and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the Indemnitors. The Indemnitors shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Indemnitors, or as to which the Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against the Indemnitee of the type referred to in clause (c) above.
(C) The Indemnitors shall not be liable to indemnify the Indemnitee under this Agreement for any amounts paid in settlement of any action or claim effected without the Indemnitors’ ' written consent. The Indemnitors shall not settle any action or claim in any manner that would impose any penalty or limitation on the Indemnitee without the Indemnitee’s 's written consent. Neither the Indemnitors nor Indemnitee will unreasonably withhold or delay consent to any proposed settlement.
Appears in 2 contracts
Samples: Indemnification Agreement (Colonial Realty Limited Partnership), Indemnification Agreement (Colonial Realty Limited Partnership)
Notification and Defense of Claims. The Indemnitee agrees promptly to notify the Indemnitors Indemnitor in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but the failure so to notify the Indemnitors Indemnitor will not relieve the Indemnitors Indemnitor from any liability that the Indemnitors Indemnitor may have to Indemnitee under this Agreement unless the Indemnitors are Indemnitor is materially prejudiced thereby. With respect to any such Proceeding as to which Indemnitee notifies the Indemnitors Indemnitor of the commencement thereof:
(A) The Indemnitors Indemnitor will be entitled to participate therein at their its own expense.
(B) Except as otherwise provided below, the Indemnitors Indemnitor will be entitled to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Indemnitors Indemnitor to Indemnitee of the Indemnitors’ Indemnitor’s election so to assume the defense thereof, the Indemnitors Indemnitor will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ IndemniteeXxxxxxxxxx’s own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors Indemnitor of the Indemnitors’ Indemnitor’s assumption of the defense thereof shall be at the expense of Indemnitee unless (a) the employment by of counsel by the Indemnitee has been authorized by the IndemnitorsIndemnitor, (b) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitors Indemnitor and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors Indemnitor could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors Indemnitor shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the IndemnitorsIndemnitor. The Indemnitors Indemnitor shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the IndemnitorsIndemnitor, or as to which the Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against the Indemnitee of the type referred to in clause (c) above.
(C) The Indemnitors Indemnitor shall not be liable to indemnify the Indemnitee under this Agreement for any amounts paid in settlement of any action or claim effected without the Indemnitors’ Indemnitor’s written consent. The Indemnitors Indemnitor shall not settle any action or claim in any manner that would impose any penalty or limitation on the Indemnitee without the Indemnitee’s written consent. Neither the Indemnitors Indemnitor nor Indemnitee will unreasonably withhold or delay consent to any proposed settlement.
Appears in 2 contracts
Samples: Indemnification Agreement (Walker & Dunlop, Inc.), Indemnification Agreement (Walker & Dunlop, Inc.)
Notification and Defense of Claims. (a) The Indemnitee agrees promptly shall notify the Company in writing no later than ten (10) business days after receiving a notice regarding the commencement of a Claim against him or her as a consequence of an Indemnifiable Event (“Notice Period”). Failure to notify the Indemnitors in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but Company within the failure so to notify the Indemnitors will Notice Period shall not relieve the Indemnitors Company from any liability that the Indemnitors it may have to the Indemnitee under by virtue of this Agreement unless Agreement; however, such failure will entitle the Indemnitors are materially prejudiced therebyCompany to take independent action against the Indemnitee for damages resulting from the lack of notice within the Notice Period. With If, at the time of receipt of such notice, the Company has any D&O Insurance Policies in effect, the Company shall give prompt notice to its insurers of the Claim relating to the notice. The Company, shall, thereafter, take all necessary or appropriate actions on behalf of the Indemnitee to make such insurers pay for all Expenses, losses, damages, judgements, fines, penalties and amounts paid or payable in respect to any such Proceeding as to which Claim against the Indemnitee notifies following an Indemnifiable Event in accordance with the Indemnitors terms of such policies.
(b) Once the Company is notified of the commencement thereof:
(A) The Indemnitors will of a Claim originating against the Indemnitee following an Indemnifiable Event, the Company shall be entitled to participate therein in the defense of any such Claim at their its own expense.
(B) Except expense and, except as otherwise provided below, to the Indemnitors will be entitled to extent the Company so wishes, it may assume the defense thereof, thereof with counsel reasonably satisfactory to Indemnitee. After notice from chosen in its sole discretion; stipulating however, that the Indemnitors to Indemnitee of the Indemnitors’ election so to assume the defense thereof, the Indemnitors will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s his/her own counsel in such ProceedingClaim, but the fees and disbursements expenses of any such counsel of the Indemnitee incurred after notice from the Indemnitors Company of the Indemnitors’ its assumption of the defense thereof shall be at the expense of Indemnitee unless the Indemnitee; and stipulating further, that counsel’s fees and expenses will be reimbursed by the Company to the extent that (ai) the employment by of counsel by Indemnitee has been previously authorized by the IndemnitorsCompany, (bii) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitors Company and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) action or (diii) the Indemnitors Company shall not in fact have employed counsel to assume the defense of such action, .
(c) The Indemnitee shall reimburse the Company for all Expenses paid by the Company in each relation to any Claim against the Indemnitee as a consequence of an Indemnifiable Event following an Indemnifiable Event in the event that a competent court had issued a final ruling that cannot be appealed and which cases provides that the fees and disbursements of counsel shall be at the expense of the Indemnitors. The Indemnitors Indemnitee shall not be entitled to assume be indemnified by the defense Company in respect of any Proceeding brought by or on behalf of such Expenses because (i) the IndemnitorsClaim is an Excluded Claim, or as (ii) the Indemnitee is not entitled to which Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) above.
(C) The Indemnitors shall not be liable to indemnify Indemnitee payment under this Agreement for any amounts paid in settlement of any action or claim effected without the Indemnitors’ written consent. The Indemnitors shall not settle any action or claim in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s written consent. Neither the Indemnitors nor Indemnitee will unreasonably withhold or delay consent to any proposed settlementAgreement.
Appears in 2 contracts
Samples: Indemnification Agreement (Bioceres Crop Solutions Corp.), Indemnity Agreement (Union Acquisition Corp.)
Notification and Defense of Claims. The (a) Indemnitee agrees promptly to shall notify the Indemnitors Company in writing as soon as practicable of any Claim that could relate to an Indemnifiable Event or for which Indemnitee could seek Expense Advances, including a brief description (based upon being served with any summonsinformation then available to Indemnitee) of the nature of, citationand the facts underlying, subpoena, complaint, indictment, information, or other document relating such Claim. The failure by Indemnitee to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but the failure so to timely notify the Indemnitors will Company hereunder shall not relieve the Indemnitors Company from any liability that the Indemnitors may have to Indemnitee under this Agreement hereunder unless the Indemnitors are Company’s ability to participate in the defense of such claim was materially prejudiced thereby. With respect to any and adversely affected by such Proceeding as to which Indemnitee notifies the Indemnitors of the commencement thereof:failure.
(Ab) The Indemnitors will Company shall be entitled to participate therein at their own expense.
(B) Except as otherwise provided below, in the Indemnitors will be entitled defense of any Claim relating to an Indemnifiable Event or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from ; provided that, if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (i) the Indemnitors use of counsel chosen by the Company to represent Indemnitee would present such counsel with an actual or potential conflict of interest, (ii) the named parties in any such Claim (including any impleaded parties) include the Company or any subsidiary of the Indemnitors’ election so to assume Company, on the defense thereofone hand, and Indemnitee, on the Indemnitors will not be liable to other hand, and Indemnitee under this Agreement for any legal or other expenses subsequently incurred concludes, after consultation with counsel selected by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors of the Indemnitors’ assumption of the defense thereof shall be at the expense of Indemnitee unless (a) the employment by counsel by Indemnitee has been authorized by the Indemnitors, (b) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between one or more legal defenses available to him that are different from or in addition to those available to the Indemnitors and the Indemnitee in the conduct Company or any subsidiary of the defense of such actionCompany, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (diii) any such representation by such counsel would be precluded under the Indemnitors applicable standards of professional conduct then prevailing, then Indemnitee shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the Indemnitors. The Indemnitors shall not be entitled to assume the defense retain separate counsel (but not more than one law firm, plus, if applicable, local counsel in respect of any Proceeding brought by or on behalf of particular Claim) at the Indemnitors, or as to which Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) above.
(C) Company’s expense. The Indemnitors Company shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action or claim Claim relating to an Indemnifiable Event effected without the Indemnitors’ Company’s prior written consent. The Indemnitors Company shall not settle not, without the prior written consent of Indemnitee, effect any action settlement of any Claim relating to an Indemnifiable Event to which Indemnitee is or claim in any manner could have been a party unless such settlement involves solely the payment of money and includes a complete and unconditional release of Indemnitee from all liability on all claims that would impose any penalty or limitation on Indemnitee without Indemnitee’s written consentare the subject matter of such Claim. Neither the Indemnitors Company nor Indemnitee will shall unreasonably withhold withhold, condition, or delay its or his consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.
Appears in 2 contracts
Samples: Indemnification Agreement (Healthcare Royalty, Inc.), Indemnification Agreement (VG Acquisition Corp.)
Notification and Defense of Claims. The 6.1 Indemnitee agrees promptly to notify the Indemnitors shall give notice in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to the Company as soon as practicable after Indemnitee becomes aware of any Proceeding with respect to which indemnification will or matter which may could be subject to indemnification or advancement of Expenses covered hereunder, but sought under this Agreement; provided that the failure so of Indemnitee to notify the Indemnitors will give such notice shall not relieve the Indemnitors from Company of any liability that the Indemnitors obligations it may have to Indemnitee otherwise than under this Agreement unless Agreement.
6.2 In the Indemnitors are materially prejudiced event any Proceeding is by or in the right of the Company or any Subsidiary, Indemnitee may, at the option of Indemnitee, either control the defense thereof or accept the defense provided under the D&O Insurance; provided, however, that Indemnitee may not control the defense if such decision would affect the coverage provided by the D&O Insurance, if any, to Indemnitee, the Company, any Subsidiary or the other Directors and Officers covered thereby. With respect The Company shall not be entitled to assume the defense of any such Proceeding as to which Indemnitee notifies brought by or in the Indemnitors right of the commencement thereof:Company or any Subsidiary.
(A) The Indemnitors will 6.3 In the event any Proceeding is other than by or in the right of the Company or any Subsidiary, the Company shall be entitled to participate therein at their its own expense.
(B) . Except as otherwise provided below, at the Indemnitors will option of the Company, the Company, alone or jointly with any other notified indemnifying party, shall be entitled to assume the defense thereofof any such Proceeding of which Indemnitee notifies the Company, with counsel reasonably satisfactory mutually acceptable to the Company and to Indemnitee. After notice from the Indemnitors Company to Indemnitee of the Indemnitors’ election so Company’s decision to assume the defense thereofin any Proceeding, the Indemnitors will Company shall not be liable to Indemnitee under this Agreement for any legal or other expenses Expenses subsequently incurred by Indemnitee in connection with the defense thereof of the Proceeding other than reasonable costs of investigation investigation, travel expenses or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, Proceeding but the fees and disbursements Expenses in connection with employment of such counsel incurred after notice from the Indemnitors of the Indemnitors’ assumption of the defense thereof shall be at the expense of paid by Indemnitee unless unless:
(a) the employment by of such counsel by Indemnitee has been authorized by the Indemnitors, Company;
(b) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitors Company and the Indemnitee in the conduct of the defense of such action, Proceeding; or
(c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors Company shall not within sixty (60) days after Indemnitee has provided the Company notice of a Proceeding in fact have employed counsel to assume the defense of such action, Proceeding; in each of which cases the fees and disbursements of counsel Expenses in connection with such Proceeding shall be at paid by the expense of the IndemnitorsCompany. The Indemnitors Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Indemnitors, or as to which Indemnitee shall have reached reasonably concluded that there may be a conflict of interest between the conclusion specified Company and Indemnitee in clause (b) above, or which involves penalties the course of defense of such Proceeding.
6.4 In no event shall the Company authorize any settlement imposing any liability or other relief against Indemnitee of the type referred to in clause (c) above.
(C) The Indemnitors shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action or claim effected without the Indemnitors’ written consent. The Indemnitors shall not settle any action or claim in any manner that would impose any penalty or limitation obligations on Indemnitee without the express prior written consent of Indemnitee’s written consent. Neither the Indemnitors nor Indemnitee will unreasonably withhold or delay consent to any proposed settlement.
Appears in 2 contracts
Samples: Indemnification Agreement (Amedisys Inc), Indemnification Agreement (Buckeye Technologies Inc)
Notification and Defense of Claims. The 6.1 Indemnitee agrees promptly to notify the Indemnitors shall give notice in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to the Company as soon as practicable after Indemnitee becomes aware of any Proceeding with respect to which indemnification will or matter which may could be subject sought under this Agreement; provided that Indemnitee’s failure to provide prompt notice of such claim for indemnification or advancement of Expenses covered hereunder, but to the failure so to notify the Indemnitors will Company shall not relieve the Indemnitors from any liability Company of its indemnification obligations hereunder unless such delay in notification to the Company has resulted in prejudice to the Company in the Proceeding; and provided further, that the Indemnitors failure of Indemnitee to give such notice shall not relieve the Company of any obligations it may have to Indemnitee otherwise than under this Agreement unless Agreement.
6.2 In the Indemnitors are materially prejudiced event any Proceeding is by or in the right of the Company or any Subsidiary, Indemnitee may, at the option of Indemnitee, either control the defense thereof or accept the defense provided under the D&O Insurance; provided, however, that Indemnitee may not control the defense if such decision would affect the coverage provided by the D&O Insurance, if any, to Indemnitee, the Company, any Subsidiary or the other Directors and Officers covered thereby. With respect The Company shall not be entitled to assume the defense of any such Proceeding as to which Indemnitee notifies brought by or in the Indemnitors right of the commencement thereof:Company or any Subsidiary.
(A) The Indemnitors will 6.3 In the event any Proceeding is other than by or in the right of the Company or any Subsidiary, the Company shall be entitled to participate therein at their its own expense.
(B) . Except as otherwise provided below, at the Indemnitors will option of the Company, the Company, alone or jointly with any other notified indemnifying party, shall be entitled to assume the defense thereofof any such Proceeding of which Indemnitee notifies the Company, with counsel reasonably satisfactory mutually acceptable to the Company and to Indemnitee. After notice from the Indemnitors Company to Indemnitee of the Indemnitors’ election so Company’s decision to assume the defense thereofin any Proceeding, the Indemnitors will Company shall not be liable to Indemnitee under this Agreement for any legal or other expenses Expenses subsequently incurred by Indemnitee in connection with the defense thereof of the Proceeding other than reasonable costs of investigation investigation, travel expenses or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, Proceeding but the fees and disbursements Expenses in connection with employment of such counsel incurred after notice from the Indemnitors of the Indemnitors’ assumption of the defense thereof shall be at the expense of paid by Indemnitee unless unless:
(a) the employment by of such counsel by Indemnitee has been authorized by the Indemnitors, Company;
(b) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitors Company and the Indemnitee in the conduct of the defense of such action, Proceeding; or
(c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors Company shall not within sixty (60) days after Indemnitee has provided the Company notice of a Proceeding in fact have employed counsel to assume the defense of such action, Proceeding; in each of which cases the fees and disbursements of counsel Expenses in connection with such Proceeding shall be at paid by the expense of the IndemnitorsCompany. The Indemnitors Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Indemnitors, or as to which Indemnitee shall have reached reasonably concluded that there may be a conflict of interest between the conclusion specified Company and Indemnitee in clause (b) above, or which involves penalties the course of defense of such Proceeding.
6.4 In no event shall the Company authorize any settlement imposing any liability or other relief against Indemnitee of the type referred to in clause (c) above.
(C) The Indemnitors shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action or claim effected without the Indemnitors’ written consent. The Indemnitors shall not settle any action or claim in any manner that would impose any penalty or limitation obligations on Indemnitee without the express prior written consent of Indemnitee’s written consent. Neither the Indemnitors nor Indemnitee will unreasonably withhold or delay consent to any proposed settlement.
Appears in 2 contracts
Samples: Indemnification Agreement (Prestige Brands Holdings, Inc.), Indemnification Agreement (Prestige Brands Holdings, Inc.)
Notification and Defense of Claims. The Indemnitee agrees promptly to notify the Indemnitors Indemnitor in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but the failure so to notify the Indemnitors Indemnitor will not relieve the Indemnitors Indemnitor from any liability that the Indemnitors Indemnitor may have to Indemnitee under this Agreement unless the Indemnitors are Indemnitor is materially prejudiced thereby. With respect to any such Proceeding as to which Indemnitee notifies the Indemnitors Indemnitor of the commencement thereof:
(Aa) The Indemnitors Indemnitor will be entitled to participate therein at their its own expense.
(Bb) Except as otherwise provided below, the Indemnitors Indemnitor will be entitled to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Indemnitors Indemnitor to Indemnitee of the Indemnitors’ Indemnitor’s election so to assume the defense thereof, the Indemnitors Indemnitor will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors of the Indemnitors’ assumption of the defense thereof shall be at the expense of Indemnitee unless or
(a) the employment by of counsel by Indemnitee has been authorized by the Indemnitors, Indemnitor,
(b) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitors Indemnitor and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors Indemnitor could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors Indemnitor shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the IndemnitorsIndemnitor. The Indemnitors Indemnitor shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the IndemnitorsIndemnitor, or as to which Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) above.
(Cc) The Indemnitors Indemnitor shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action or claim effected without the Indemnitors’ Indemnitor’s written consent. The Indemnitors Indemnitor shall not settle any action or claim in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s written consent. Neither the Indemnitors Indemnitor nor Indemnitee will unreasonably withhold or delay consent to any proposed settlement.
Appears in 2 contracts
Samples: Indemnification Agreement (Jernigan Capital, Inc.), Indemnification Agreement (Jernigan Capital, Inc.)
Notification and Defense of Claims. The As a condition precedent to Indemnitee’s right to be indemnified, Indemnitee agrees promptly to notify the Indemnitors Corporation in writing upon being served as soon as reasonably practicable of any Proceeding for which indemnity will or could be sought by Indemnitee and provide the Corporation with a copy of any summons, citation, subpoena, complaint, indictment, information, information or other document relating to any such Proceeding or matter with which may be subject to indemnification or advancement of Expenses covered hereunderIndemnitee is served; provided, but however, that the failure so to notify the Indemnitors will give such notice shall not relieve the Indemnitors from any liability that the Indemnitors may have Corporation of its obligations to Indemnitee under this Agreement unless Agreement, except to the Indemnitors are extent, if any, that the Corporation is actually and materially prejudiced therebyby the failure to give such notice. With respect to any such Proceeding as to of which Indemnitee notifies the Indemnitors of Corporation is so notified, the commencement thereof:
(A) The Indemnitors will Corporation shall be entitled to participate therein at their its own expense.
(B) Except as otherwise provided below, the Indemnitors will be entitled expense and/or to assume the defense thereofthereof at its own expense, with legal counsel reasonably satisfactory acceptable to Indemnitee. After notice from the Indemnitors Corporation to Indemnitee of the Indemnitors’ its election so to assume the defense thereofsuch defense, the Indemnitors will Corporation shall not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof such Proceeding, other than reasonable costs of investigation or as otherwise provided belowbelow in this Paragraph 7. Indemnitee shall have the right to employ Indemnitee’s own counsel in connection with such Proceeding, but the fees and disbursements expenses of such counsel incurred after notice from the Indemnitors Corporation of the Indemnitors’ its assumption of the defense thereof shall be at the expense of Indemnitee unless (a) the employment by of counsel by Indemnitee has been authorized by the IndemnitorsCorporation, (b) the counsel to Indemnitee shall have reasonably concluded and advised the Corporation in writing that there may be is a conflict of interest on any significant issue between the Indemnitors Corporation and the Indemnitee in the conduct of the defense of such actionProceeding, or (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors Corporation shall not in fact have employed counsel to assume the defense of such actionProceeding, in each of which cases the fees and disbursements expenses of counsel for Indemnitee shall be at the expense of the IndemnitorsCorporation, except as otherwise expressly provided by this Agreement. The Indemnitors Corporation shall not be entitled entitled, without the consent of Indemnitee, to assume the defense of any Proceeding claim brought by or on behalf in the right of the Indemnitors, Corporation or as to which counsel for Indemnitee shall have reached reasonably made the conclusion specified and given the notice provided for in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) above.
(C) . The Indemnitors Corporation shall not be liable required to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action or claim Proceeding effected without the Indemnitors’ its written consent. The Indemnitors Corporation shall not settle any action or claim Proceeding in any manner that which would impose any penalty or limitation on Indemnitee without Indemnitee’s written consent. Neither the Indemnitors Corporation nor Indemnitee will unreasonably withhold or delay its consent to any proposed settlement.
Appears in 2 contracts
Samples: Indemnification Agreement (Lion Biotechnologies, Inc.), Indemnification Agreement (Lion Biotechnologies, Inc.)
Notification and Defense of Claims. The Indemnitee agrees promptly to notify the Indemnitors Indemnitor in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but the failure so to notify the Indemnitors Indemnitor will not relieve the Indemnitors Indemnitor from any liability that the Indemnitors Indemnitor may have to Indemnitee under this Agreement unless the Indemnitors are Indemnitor is materially prejudiced thereby. With respect to any such Proceeding as to which Indemnitee notifies the Indemnitors Indemnitor of the commencement thereof:
(A) The Indemnitors Indemnitor will be entitled to participate therein at their its own expense.
(B) Except as otherwise provided below, the Indemnitors Indemnitor will be entitled to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Indemnitors Indemnitor to Indemnitee of the Indemnitors’ Indemnitor’s election so to assume the defense thereof, the Indemnitors Indemnitor will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors Indemnitor of the Indemnitors’ Indemnitor’s assumption of the defense thereof shall be at the expense of Indemnitee unless unless
(a) the employment by counsel by Indemnitee has been authorized by the IndemnitorsIndemnitor, (b) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitors Indemnitor and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors Indemnitor could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors Indemnitor shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the IndemnitorsIndemnitor. The Indemnitors Indemnitor shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the IndemnitorsIndemnitor, or as to which Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) above.
(C) The Indemnitors Indemnitor shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action or claim effected without the Indemnitors’ Indemnitor’s written consent. The Indemnitors Indemnitor shall not settle any action or claim in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s written consent. Neither the Indemnitors Indemnitor nor Indemnitee will unreasonably withhold or delay consent to any proposed settlement.
Appears in 2 contracts
Samples: Indemnification Agreement (Colony Financial, Inc.), Indemnification Agreement (Colony Financial, Inc.)
Notification and Defense of Claims. The Indemnitee agrees promptly to notify the Indemnitors in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but the failure so to notify the Indemnitors will not relieve the Indemnitors from any liability that the Indemnitors may have to Indemnitee under this Agreement unless the Indemnitors are materially prejudiced thereby. With respect to any such Proceeding as to which Indemnitee notifies the Indemnitors of the commencement thereof:
(A) The Indemnitors will be entitled to participate therein at their own expense.
(B) Except as otherwise provided below, the Indemnitors will be entitled to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Indemnitors to Indemnitee of the Indemnitors’ election so to assume the defense thereof, the Indemnitors will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors of the Indemnitors’ assumption of the defense thereof shall be at the expense of Indemnitee unless (a) the employment by counsel by Indemnitee has been authorized by the Indemnitors, (b) the Indemnitee shall have reasonably concluded (based on an opinion of counsel) that (i) the Indemnitee may have separate defenses or counterclaims to assert with respect to any issue which may not be consistent with other defendants in such Proceeding or (ii) there may be a conflict of interest between the Indemnitors and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the Indemnitors. The Indemnitors shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Indemnitors, or as to which Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) above.
(C) The Indemnitors shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action or claim effected without the Indemnitors’ written consent. The Indemnitors shall not settle any action or claim in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s written consent. Neither the Indemnitors nor Indemnitee will unreasonably withhold or delay consent to any proposed settlement.
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Notification and Defense of Claims. The As a condition precedent to Indemnitee’s right to be indemnified, Indemnitee agrees promptly to notify the Indemnitors Company in writing upon being served as soon as reasonably practicable of any Proceeding for which indemnity will or could be sought by Indemnitee and provide the Company with a copy of any summons, citation, subpoena, complaint, indictment, information, information or other document relating to any such Proceeding or matter with which may be subject to indemnification or advancement of Expenses covered hereunderIndemnitee is served; provided, but however, that the failure so to notify the Indemnitors will give such notice shall not relieve the Indemnitors from any liability that the Indemnitors may have Company of its obligations to Indemnitee under this Agreement unless Agreement, except to the Indemnitors are extent, if any, that the Company is actually and materially prejudiced therebyby the failure to give such notice. With respect to any such Proceeding as to of which Indemnitee notifies the Indemnitors of Company is so notified, the commencement thereof:
(A) The Indemnitors will Company shall be entitled to participate therein at their its own expense.
(B) Except as otherwise provided below, the Indemnitors will be entitled expense and/or to assume the defense thereofthereof at its own expense, with legal counsel reasonably satisfactory acceptable to Indemnitee. After notice from the Indemnitors Company to Indemnitee of the Indemnitors’ its election so to assume the defense thereofsuch defense, the Indemnitors will Company shall not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof such Proceeding, other than reasonable costs of investigation or as otherwise provided belowbelow in this Section 7. Indemnitee I ndemnitee shall have the right to employ Indemnitee’s own counsel in connection with such Proceeding, but the fees and disbursements expenses of such counsel incurred after notice from the Indemnitors Company of the Indemnitors’ its assumption of the defense thereof shall be at the expense of Indemnitee unless (a) the employment by of counsel by Indemnitee has been authorized by the IndemnitorsCompany, (b) the counsel to Indemnitee shall have reasonably concluded and advised the Company in writing that there may be is a conflict of interest on any significant issue between the Indemnitors Company and the Indemnitee in the conduct of the defense of such actionProceeding, or (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors Company shall not in fact have employed counsel to assume the defense of such actionProceeding, in each of which cases the fees and disbursements expenses of counsel for Indemnitee shall be at the expense of the IndemnitorsCompany, except as otherwise expressly provided by this Agreement. The Indemnitors Company shall not be entitled entitled, without the consent of Indemnitee, to assume the defense of any Proceeding claim brought by or on behalf in the right of the Indemnitors, Company or as to which counsel for Indemnitee shall have reached reasonably made the conclusion specified and given the notice provided for in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) above.
(C) . The Indemnitors Company shall not be liable required to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action or claim Proceeding effected without the Indemnitors’ its written consent. The Indemnitors Company shall not settle any action or claim Proceeding in any manner that which would impose any penalty or limitation on Indemnitee without Indemnitee’s written consent. Neither the Indemnitors Company nor Indemnitee will unreasonably withhold or delay its consent to any proposed settlement.
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Samples: Indemnification Agreement (Airborne Wireless Network)
Notification and Defense of Claims. The Indemnitee agrees promptly to notify the Indemnitors Indemnitor in writing upon being served with any summons, citation, subpoena, complaint, indictment, request, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunderhereunder and shall include with such notice a description of the nature of the Proceeding and a summary of the facts underlying the Proceeding, but the failure so to notify the Indemnitors Indemnitor will not relieve the Indemnitors Indemnitor from any liability that the Indemnitors Indemnitor may have to Indemnitee under this Agreement unless the Indemnitors are materially prejudiced therebyIndemnitor can establish that such omission to notify resulted in actual and material prejudice to the ability of the Company to defend in such Proceeding or to obtain proceeds under any insurance policy which cannot be reversed or otherwise eliminated without any material adverse effect on the Indemnitor. With respect to any such Proceeding as to which Indemnitee notifies the Indemnitors Indemnitor of the commencement thereof:
(A) The Indemnitors Indemnitor will be entitled to participate therein at their its own expense.
(B) Except as otherwise provided below, the Indemnitors Indemnitor will be entitled to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Indemnitors Indemnitor to Indemnitee of the Indemnitors’ Indemnitor’s election so to assume the defense thereof, the Indemnitors Indemnitor will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. The Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors Indemnitor of the Indemnitors’ Indemnitor’s assumption of the defense thereof shall be at the expense of the Indemnitee unless (a) the employment by of counsel by the Indemnitee has been authorized by the IndemnitorsIndemnitor, (b) the Indemnitee shall have reasonably concluded concluded, based upon an opinion of counsel approved by the Indemnitor, which approval shall not be unreasonably withheld or delayed, that there may be a conflict of interest between the Indemnitors Indemnitor and the Indemnitee in the conduct of the defense of such action, (c) the Indemnitee shall have reasonably concluded, based upon an opinion of counsel approved by the Indemnitor, which approval shall not be unreasonably withheld or delayed, that Indemnitee may have separate defenses or counterclaims to assert with respect to any issue which may not be consistent with other defendants in such Proceeding, (d) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors Indemnitor could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (de) the Indemnitors Indemnitor shall not in fact have employed counsel to assume the defense of such actionaction in a timely manner, in each of which cases the fees and disbursements of counsel (which counsel shall be subject to the prior approval of the Indemnitor, which approval shall not be unreasonably withheld or delayed) shall be at the expense of the IndemnitorsIndemnitor (subject to Section 3(B). In addition, if the Company fails to comply with any of its obligations under this Agreement or in the event that the Company or any other person takes any action to declare this Agreement void or unenforceable, or institutes any Proceeding to deny or to recover from Indemnitee the benefits intended to be provided to Indemnitee hereunder, Indemnitee shall have the right to retain counsel of Indemnitee’s choice, subject to the prior approval of the Company, which approval shall not be unreasonably withheld or delayed, at the expense of the Company (subject to Section 3(B)), to represent Indemnitee in connection with any such matter. The Indemnitors Indemnitor shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the IndemnitorsIndemnitor, or as to which the Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against the Indemnitee of the type referred to in clause (c) above.
(C) The Indemnitors Indemnitor shall not be liable to indemnify the Indemnitee under this Agreement for any amounts paid in settlement of any action or claim effected without the Indemnitors’ Indemnitor’s written consent. The Indemnitors Indemnitor shall not settle any action or claim in any manner that would (i) include an admission of fault of Indemnitee, (ii) not include, as an unconditional term thereof, the full release of Indemnitee from all liability in respect of such Proceeding, which release shall be in form and substance reasonably satisfactory to Indemnitee, or (iii) impose any penalty or limitation on the Indemnitee without the Indemnitee’s written consent. Neither the Indemnitors Indemnitor nor Indemnitee will unreasonably withhold or delay consent to any proposed settlement.
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Notification and Defense of Claims. The (a) Indemnitee agrees promptly to shall notify the Indemnitors Company in writing as soon as practicable of any Claim that could relate to an Indemnifiable Event or for which Indemnitee could seek Expense Advances, including a brief description (based upon being served with any summonsinformation then available to Indemnitee) of the nature of, citationand the facts underlying, subpoena, complaint, indictment, information, or other document relating such Claim. The failure by Indemnitee to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but the failure so to timely notify the Indemnitors will Company hereunder shall not relieve the Indemnitors Company from any liability hereunder except and only to the extent that the Indemnitors may have to Indemnitee under this Agreement unless the Indemnitors are Company is actually and materially prejudiced thereby. With respect to any by such Proceeding as to which Indemnitee notifies the Indemnitors of the commencement thereof:failure.
(Ab) The Indemnitors will Company shall be entitled to participate therein at their own expense.
(B) Except as otherwise provided below, in the Indemnitors will be entitled defense of any Claim relating to an Indemnifiable Event or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Indemnitors to ; provided that, if Indemnitee of the Indemnitors’ election so to assume the defense thereofbelieves, the Indemnitors will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred after consultation with counsel selected by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors of the Indemnitors’ assumption of the defense thereof shall be at the expense of Indemnitee unless that (a) the employment by use of counsel by Indemnitee has been authorized chosen by the IndemnitorsCompany to represent Indemnitee would present such counsel with an actual or potential conflict of interest, (b) the named parties in any such Claim (including any impleaded parties) include the Company or any subsidiary of the Company, on the one hand, and Indemnitee, on the other hand, and Indemnitee shall have reasonably concluded concludes, after consultation with counsel selected by Indemnitee, that there may be a conflict of interest between one or more legal defenses available to him that are different from or in addition to those available to the Indemnitors and the Indemnitee in the conduct Company or any subsidiary of the defense of such actionCompany, or (c) any such Proceeding seeks penalties or other relief against representation by such counsel would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee with respect to which the Indemnitors could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the Indemnitors. The Indemnitors shall not be entitled to assume the defense retain separate counsel (but not more than one law firm, plus, if applicable, local counsel in respect of any Proceeding brought by or on behalf of particular Claim) at the Indemnitors, or as to which Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) above.
(C) Company’s expense. The Indemnitors Company shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action or claim Claim relating to an Indemnifiable Event effected without the Indemnitors’ Company’s prior written consent. The Indemnitors Company shall not settle not, without the prior written consent of Indemnitee, effect any action settlement of any Claim relating to an Indemnifiable Event to which Indemnitee is or claim in any manner could have been a party unless such settlement involves solely the payment of money and includes a complete and unconditional release of Indemnitee from all liability on all claims that would impose any penalty or limitation on Indemnitee without Indemnitee’s written consentare the subject matter of such Claim. Neither the Indemnitors Company nor Indemnitee will shall unreasonably withhold withhold, condition, or delay its, his or her consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.
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Notification and Defense of Claims. The Indemnitee agrees promptly to notify the Indemnitors Indemnitor in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but the failure so to notify the Indemnitors Indemnitor will not relieve the Indemnitors Indemnitor from any liability that the Indemnitors Indemnitor may have to Indemnitee under this Agreement unless the Indemnitors are materially prejudiced therebyIndemnitor can establish that such omission to notify resulted in actual and material prejudice to it which cannot be reversed or otherwise eliminated without any material adverse effect on the Indemnitor. With respect to any such Proceeding as to which Indemnitee notifies the Indemnitors Indemnitor of the commencement thereof:
(A) The Indemnitors Indemnitor will be entitled to participate therein at their its own expense.
(B) Except as otherwise provided below, the Indemnitors Indemnitor will be entitled to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Indemnitors Indemnitor to Indemnitee of the Indemnitors’ Indemnitor’s election so to assume the defense thereof, the Indemnitors Indemnitor will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. The Indemnitee shall have the right to employ IndemniteeXxxxxxxxxx’s own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors Indemnitor of the Indemnitors’ Indemnitor’s assumption of the defense thereof shall be at the expense of Indemnitee unless (a) the employment by of counsel by the Indemnitee has been authorized by the IndemnitorsIndemnitor, (b) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitors Indemnitor and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors Indemnitor could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors Indemnitor shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the IndemnitorsIndemnitor. The Indemnitors Indemnitor shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the IndemnitorsIndemnitor, or as to which the Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against the Indemnitee of the type referred to in clause (c) above.
(C) The Indemnitors Indemnitor shall not be liable to indemnify the Indemnitee under this Agreement for any amounts paid in settlement of any action or claim effected without the Indemnitors’ Indemnitor’s written consent. The Indemnitors Indemnitor shall not settle any action or claim in any manner that would impose any penalty or limitation on the Indemnitee without the Indemnitee’s written consent. Neither the Indemnitors Indemnitor nor Indemnitee will unreasonably withhold or delay consent to any proposed settlement.
Appears in 1 contract
Samples: Indemnification Agreement (Net Lease Office Properties)
Notification and Defense of Claims. The Indemnitee agrees promptly to notify the Indemnitors Company in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but the failure so to notify the Indemnitors Company will not relieve the Indemnitors Company from any liability that the Indemnitors Company may have to Indemnitee under this Agreement unless the Indemnitors are Company is materially prejudiced thereby. With respect to any such Proceeding as to which Indemnitee notifies the Indemnitors Company of the commencement thereof:
(A) The Indemnitors Company will be entitled to participate therein at their its own expense.
(B) Except as otherwise provided below, the Indemnitors Company will be entitled to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Indemnitors Company to Indemnitee of the Indemnitors’ Company’s election so to assume the defense thereof, the Indemnitors Company will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors Company of the Indemnitors’ Company’s assumption of the defense thereof shall be at the expense of Indemnitee unless (a) the employment by counsel by Indemnitee has been authorized by the IndemnitorsCompany, (b) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitors Company and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors Company could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors Company shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the IndemnitorsCompany. The Indemnitors Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the IndemnitorsCompany, or as to which Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) above.
(C) The Indemnitors Company shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action or claim effected without the Indemnitors’ Company’s written consent. The Indemnitors Company shall not settle any action or claim in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s written consent. Neither the Indemnitors Company nor Indemnitee will unreasonably withhold or delay consent to any proposed settlement.
Appears in 1 contract
Samples: Indemnification Agreement (Washington Real Estate Investment Trust)
Notification and Defense of Claims. (a) The failure by the Indemnitee agrees promptly to timely notify the Indemnitors Company of any action, suit or proceeding referred to in writing upon being served with Section 2(a) or 2(b) or any summons, citation, subpoena, complaint, indictment, information, claim referred in Section 3 for which Indemnitee seeks or other document relating to any Proceeding or matter which may be subject to seek indemnification or advancement of Expenses covered hereunderexpenses under this Agreement, but the failure so to notify the Indemnitors will shall not relieve the Indemnitors Company from any liability that hereunder unless, and only to the Indemnitors may have to Indemnitee under this Agreement unless extent that, the Indemnitors are materially prejudiced thereby. With respect to any Company did not otherwise learn of such Proceeding as to which Indemnitee notifies action, suit, proceeding or claim and such failure results in forfeiture by the Indemnitors Company of the commencement thereof:substantial defenses, rights or insurance coverage.
(Ab) The Indemnitors will Company shall be entitled to participate therein at their own expense.
(Bin the defense of any action, suit or proceeding referred to in Section 2(a) Except as otherwise provided below, the Indemnitors will be entitled or 2(b) or any claim referred to in Section 3 for which Indemnitee seeks or may seek indemnification or advancement of expenses under this Agreement or to assume the defense thereof, with counsel reasonably satisfactory to the Indemnitee. After notice from the Indemnitors to ; provided that if Indemnitee of the Indemnitors’ election so to assume the defense thereofreasonably believes, the Indemnitors will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred after consultation with counsel selected by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors of the Indemnitors’ assumption of the defense thereof shall be at the expense of Indemnitee unless that (a) the employment by use of counsel by Indemnitee has been authorized chosen by the IndemnitorsCompany to represent Indemnitee would present such counsel with an actual or potential conflict, (b) the named parties in any such action, suit, proceeding or claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee shall have reasonably concluded conclude that there may be a conflict of interest between one or more legal defenses available to him that are different from or in addition to those available to the Indemnitors and the Indemnitee in the conduct of the defense of such actionCompany, or (c) any such Proceeding seeks penalties or other relief against representation by such counsel would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee with respect to which the Indemnitors could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the Indemnitors. The Indemnitors shall not be entitled to assume the defense retain separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any Proceeding brought by particular action, suit, proceeding or on behalf of claim) at the Indemnitors, or as to which Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) above.
(C) Company’s expense. The Indemnitors Company shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action threatened or pending action, suit, proceeding or claim effected without the Indemnitors’ Company’s prior written consent. The Indemnitors Company shall not settle not, without the prior written consent of the Indemnitee, effect any action settlement of any threatened or pending action, suit, proceeding or claim in to which the Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money by persons other than the Indemnitee and includes a complete and unconditional release of the Indemnitee from all liability on any manner claims that would impose any penalty are the subject matter of such action, suit, proceeding or limitation on Indemnitee without Indemnitee’s written consentclaim. Neither the Indemnitors Company nor Indemnitee will shall unreasonably withhold or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.
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Notification and Defense of Claims. The (a) Indemnitee agrees shall promptly to notify the Indemnitors Company in writing upon being served with of any summons, citation, subpoena, complaint, indictment, information, Claim that could relate to an Indemnifiable Event or other document relating to any Proceeding or matter for which may be subject to Indemnitee could seek indemnification or advancement Expense Advances, including a brief description (based upon information then available to Indemnitee) of Expenses covered hereunderthe nature of, but and the facts underlying, such Claim. The failure so by Indemnitee to timely notify the Indemnitors will Company hereunder shall not relieve the Indemnitors Company from any liability that hereunder except to the Indemnitors may have extent the Company’s ability to Indemnitee under this Agreement unless participate in the Indemnitors are defense of such claim was materially prejudiced thereby. With respect to any and adversely affected by such Proceeding as to which Indemnitee notifies the Indemnitors of the commencement thereof:failure.
(Ab) The Indemnitors will Company shall be entitled to participate therein at their own expense.
(B) Except as otherwise provided below, in the Indemnitors will be entitled defense of any Claim relating to an Indemnifiable Event or to assume the defense thereof, with provided that counsel is reasonably satisfactory acceptable to Indemnitee. After notice from ; provided further that, if Indemnitee believes, after consultation with counsel, that (i) the Indemnitors use of counsel chosen by the Company to represent Indemnitee would present such counsel with an actual or potential conflict of interest, (ii) the named parties in any such Claim (including any impleaded parties) include the Company or any subsidiary of the Indemnitors’ election so to assume Company, on the defense thereofone hand, and Indemnitee, on the Indemnitors will not be liable to other hand, and Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection concludes, after consultation with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceedingcounsel, but the fees and disbursements of such counsel incurred after notice from the Indemnitors of the Indemnitors’ assumption of the defense thereof shall be at the expense of Indemnitee unless (a) the employment by counsel by Indemnitee has been authorized by the Indemnitors, (b) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between one or more legal defenses available to him or her that are different from or in addition to those available to the Indemnitors and the Indemnitee in the conduct Company or any subsidiary of the defense of such actionCompany, (ciii) such Proceeding seeks penalties Indemnitee may be subject to criminal liability or other relief against the Indemnitee with respect to which the Indemnitors could not provide monetary indemnification to the Indemnitee (such as that injunctive relief or incarceration) may be available or (div) any such representation by such counsel would be precluded under the Indemnitors applicable standards of professional conduct then prevailing, then Indemnitee shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the Indemnitors. The Indemnitors shall not be entitled to assume the defense retain separate counsel (but not more than one law firm, plus, if applicable, local counsel in respect of any Proceeding brought by or on behalf of particular Claim) at the Indemnitors, or as to which Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) above.
(C) Company’s expense. The Indemnitors Company shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action or claim Claim relating to an Indemnifiable Event effected without the Indemnitors’ Company’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. The Indemnitors Company shall not, without the prior written consent of Indemnitee, effect any settlement of any Claim relating to an Indemnifiable Event to which Indemnitee is a party except to the extent that such settlement involves solely the payment of money to be paid by the Company and includes a complete and unconditional release of Indemnitee from all liability on all claims that are, or relate to or arise from, the subject matter of such Claim. Indemnitee shall not settle any action or claim in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s written consent. Neither the Indemnitors nor Indemnitee will unreasonably withhold withhold, condition, or delay its, his or her consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee or that requires Indemnitee to admit wrongdoing or agree to injunctive relief.
Appears in 1 contract
Notification and Defense of Claims. The Indemnitee agrees promptly to notify the Indemnitors Indemnitor in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but the failure so to notify the Indemnitors Indemnitor will not relieve the Indemnitors Indemnitor from any liability that the Indemnitors Indemnitor may have to Indemnitee under this Agreement unless the Indemnitors are Indemnitor is materially prejudiced thereby. With respect to any such Proceeding as to which Indemnitee notifies the Indemnitors Indemnitor of the commencement thereof::
(A) The Indemnitors Indemnitor will be entitled to participate therein at their its own expense..
(B) Except as otherwise provided below, the Indemnitors Indemnitor will be entitled to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Indemnitors Indemnitor to Indemnitee of the Indemnitors’ Indemnitor’s election so to assume the defense thereof, the Indemnitors Indemnitor will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors Indemnitor of the Indemnitors’ Indemnitor’s assumption of the defense thereof shall be at the expense of Indemnitee unless (a) the employment by of counsel by the Indemnitee has been authorized by the IndemnitorsIndemnitor, (b) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitors Indemnitor and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors Indemnitor could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors Indemnitor shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the IndemnitorsIndemnitor. The Indemnitors Indemnitor shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the IndemnitorsIndemnitor, or as to which the Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against the Indemnitee of the type referred to in clause (c) above.
(C) The Indemnitors Indemnitor shall not be liable to indemnify the Indemnitee under this Agreement for any amounts paid in settlement of any action or claim effected without the Indemnitors’ Indemnitor’s written consent. The Indemnitors Indemnitor shall not settle any action or claim in any manner that would impose any penalty or limitation on the Indemnitee without the Indemnitee’s written consent. Neither the Indemnitors Indemnitor nor Indemnitee will unreasonably withhold or delay consent to any proposed settlement.
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Notification and Defense of Claims. The (a) If Indemnitee agrees promptly to notify receives notice, otherwise than from the Indemnitors in writing upon being served with any summonsCompany or the Partnership, citation, subpoena, complaint, indictment, informationthat Indemnitee is or will be made, or other document relating is threatened to be made, a party to any Proceeding or matter in respect of which may be subject Indemnitee intends to seek indemnification or advancement of Expenses covered hereunder, but the failure so to Indemnitee must promptly notify the Indemnitors Company and the Partnership in writing of the nature and, to Indemnitee's knowledge, status of that Proceeding. If this Section 5(a) requires Indemnitee to give such a notice, but Indemnitee fails to do so, that failure will not relieve the Indemnitors from any liability that Company or the Indemnitors Partnership from, or otherwise affect, the obligations the Company or the Partnership may have to indemnify Indemnitee under this Agreement Agreement, unless the Indemnitors are materially prejudiced thereby. With Company and the Partnership can establish that the failure has resulted in actual prejudice to the Company and the Partnership.
(b) Except as this Section 5(b) otherwise provides below, in the case of any Proceeding in respect to any such Proceeding as to of which Indemnitee notifies the Indemnitors of the commencement thereofseeks indemnification hereunder:
(A1) The Indemnitors the Company, the Partnership any Related Enterprise that also may be obligated to indemnify Indemnitee in respect of that Proceeding will be entitled to participate therein at their its own expense.expense in that Proceeding;
(B2) Except as otherwise provided belowthe Company, the Indemnitors Partnership or that Related Enterprise, or either of them, will be entitled to assume the defense thereofof all Claims, with counsel other than (i) Company Claims, if any, and (ii) other Claims, if any, as to which Indemnitee shall reasonably satisfactory reach the conclusion described in clause (C) of the next sentence below, in that Proceeding against Indemnitee by prompt written notice of that election to Indemnitee. After notice from ; and
(3) if clause (2) above entitles the Indemnitors to Indemnitee of the Indemnitors’ election so Company or that Related Enterprise to assume the defense thereofof any of those Claims and it delivers to Indemnitee notice of that assumption under clause (2), the Indemnitors Company and the Partnership will not be liable to Indemnitee under this Agreement hereunder for any fees or expenses of legal or other expenses subsequently incurred by counsel for Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided belowwhich Indemnitee incurs after Indemnitee receives that notice. Indemnitee shall will have the right to employ Indemnitee’s 's own legal counsel in such that Proceeding, but but, as clause (3) of the preceding sentence provides, will bear the fees and disbursements expenses of such that counsel incurred after notice from the Indemnitors of the Indemnitors’ assumption of the defense thereof shall be at the expense of Indemnitee unless unless:
(aA) the employment by counsel by Company or the Partnership has authorized Indemnitee has been authorized by the Indemnitors, in writing to retain that counsel;
(bB) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between Company or the Indemnitors and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors Partnership shall not in fact within a reasonable period of time actually have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the Indemnitors. The Indemnitors shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Indemnitors, or as to which Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) above.those Claims; or
(C) Indemnitee shall have (i) reasonably concluded that a conflict of interest may exist between Indemnitee, on the one hand, and the Company or the Partnership, on the other hand, as to the defense of one or more of those Claims and (ii) communicated that conclusion to the Company and the Partnership in writing.
(c) The Indemnitors shall Company and the Partnership will not be liable obligated hereunder to, or to cause another Partnership Entity to, indemnify Indemnitee under this Agreement for against or hold Indemnitee harmless from and in respect of any amounts paid paid, or agreed to be paid, by Indemnitee in settlement of any action or claim effected Claim against Indemnitee which Indemnitee effects without the Indemnitors’ Company's or the Partnership's prior written consent. The Indemnitors shall Company and the Partnership will not settle any action or claim Claim against Indemnitee in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s 's prior written consent. Neither the Indemnitors Company, the Partnership nor Indemnitee will unreasonably delay or withhold or delay consent to any proposed settlementsuch settlement the other party proposes to effect.
Appears in 1 contract
Samples: Indemnification Agreement (Abraxas Energy Partners LP)
Notification and Defense of Claims. The Indemnitee agrees promptly to notify the Indemnitors Indemnitor in writing upon being served with any summons, citation, subpoena, complaint, indictment, request, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunderhereunder and shall include with such notice a description of the nature of the Proceeding and a summary of the facts underlying the Proceeding, but the failure so to notify the Indemnitors Indemnitor will not relieve the Indemnitors Indemnitor from any liability that the Indemnitors Indemnitor may have to Indemnitee under this Agreement unless the Indemnitors are materially prejudiced therebyIndemnitor can establish that such omission to notify resulted in actual and material prejudice to the ability of the Company to defend in such Proceeding or to obtain proceeds under any insurance policy which cannot be reversed or otherwise eliminated without any material adverse effect on the Indemnitor. With respect to any such Proceeding as to which Indemnitee notifies the Indemnitors Indemnitor of the commencement thereof:
(A) The Indemnitors Indemnitor will be entitled to participate therein at their its own expense.
(B) Except as otherwise provided below, the Indemnitors Indemnitor will be entitled to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Indemnitors Indemnitor to Indemnitee of the Indemnitors’ Indemnitor’s election so to assume the defense thereof, the Indemnitors Indemnitor will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. The Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors Indemnitor of the Indemnitors’ Indemnitor’s assumption of the defense thereof shall be at the expense of the Indemnitee unless unless
(a) the employment by of counsel by the Indemnitee has been authorized by the IndemnitorsIndemnitor, (b) the Indemnitee shall have reasonably concluded concluded, based upon an opinion of counsel approved by the Indemnitor, which approval shall not be unreasonably withheld or delayed, that there may be a conflict of interest between the Indemnitors Indemnitor and the Indemnitee in the conduct of the defense of such action, (c) the Indemnitee shall have reasonably concluded, based upon an opinion of counsel approved by the Indemnitor, which approval shall not be unreasonably withheld or delayed, that Indemnitee may have separate defenses or counterclaims to assert with respect to any issue which may not be consistent with other defendants in such Proceeding, (d) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors Indemnitor could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (de) the Indemnitors Indemnitor shall not in fact have employed counsel to assume the defense of such actionaction in a timely manner, in each of which cases the fees and disbursements of counsel (which counsel shall be subject to the prior approval of the Indemnitor, which approval shall not be unreasonably withheld or delayed) shall be at the expense of the IndemnitorsIndemnitor (subject to Section 3(B). In addition, if the Company fails to comply with any of its obligations under this Agreement or in the event that the Company or any other person takes any action to declare this Agreement void or unenforceable, or institutes any Proceeding to deny or to recover from Indemnitee the benefits intended to be provided to Indemnitee hereunder, Indemnitee shall have the right to retain counsel of Indemnitee’s choice, subject to the prior approval of the Company, which approval shall not be unreasonably withheld or delayed, at the expense of the Company (subject to Section 3(B)), to represent Indemnitee in connection with any such matter. The Indemnitors Indemnitor shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the IndemnitorsIndemnitor, or as to which the Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against the Indemnitee of the type referred to in clause (c) above.
(C) The Indemnitors Indemnitor shall not be liable to indemnify the Indemnitee under this Agreement for any amounts paid in settlement of any action or claim effected without the Indemnitors’ Indemnitor’s written consent. The Indemnitors Indemnitor shall not settle any action or claim in any manner that would (i) include an admission of fault of Indemnitee, (ii) not include, as an unconditional term thereof, the full release of Indemnitee from all liability in respect of such Proceeding, which release shall be in form and substance reasonably satisfactory to Indemnitee, or (iii) impose any penalty or limitation on the Indemnitee without the Indemnitee’s written consent. Neither the Indemnitors Indemnitor nor Indemnitee will unreasonably withhold or delay consent to any proposed settlement.
Appears in 1 contract
Notification and Defense of Claims. The Indemnitee agrees promptly to notify the Indemnitors Indemnitor in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but the failure so to notify the Indemnitors Indemnitor will not relieve the Indemnitors Indemnitor from any liability that the Indemnitors Indemnitor may have to Indemnitee under this Agreement unless the Indemnitors are Indemnitor is materially prejudiced thereby. With respect to any such Proceeding as to which Indemnitee notifies the Indemnitors Indemnitor of the commencement thereof::
(A) The Indemnitors Indemnitor will be entitled to participate therein at their its own expense.
(B) Except as otherwise provided below, the Indemnitors Indemnitor will be entitled to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Indemnitors Indemnitor to Indemnitee of the Indemnitors’ Indemnitor’s election so to assume the defense thereof, the Indemnitors Indemnitor will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors Indemnitor of the Indemnitors’ Indemnitor’s assumption of the defense thereof shall be at the expense of Indemnitee unless (a) the employment by of counsel by the Indemnitee has been authorized by the IndemnitorsIndemnitor, (b) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitors Indemnitor and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors Indemnitor could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors Indemnitor shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the IndemnitorsIndemnitor. The Indemnitors Indemnitor shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the IndemnitorsIndemnitor, or as to which the Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against the Indemnitee of the type referred to in clause (c) above.
(C) The Indemnitors Indemnitor shall not be liable to indemnify the Indemnitee under this Agreement for any amounts paid in settlement of any action or claim effected without the Indemnitors’ Indemnitor’s written consent. The Indemnitors Indemnitor shall not settle any action or claim in any manner that would impose any penalty or limitation on the Indemnitee without the Indemnitee’s written consent. Neither the Indemnitors Indemnitor nor Indemnitee will unreasonably withhold or delay consent to any proposed settlement.
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Notification and Defense of Claims. The As soon as reasonably practicable after the receipt by Indemnitee agrees promptly of notice of the commencement of any Proceeding, Indemnitee will, if a claim in respect thereof is to be made against the Company under this Agreement, notify the Indemnitors in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating Company of the commencement of such Proceeding; provided however that the omission to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but the failure so to notify the Indemnitors Company will not relieve the Indemnitors Company from any liability that the Indemnitors which it may have to Indemnitee otherwise than under this Agreement unless the Indemnitors are materially prejudiced therebyAgreement. With respect to any such Proceeding as to which Indemnitee notifies the Indemnitors Company of the commencement thereof:;
(Aa) The Indemnitors will Company shall be entitled to participate therein at their own its expense.; and
(Bb) Except as otherwise provided belowherein, to the extent it may elect to do so, the Indemnitors Company (jointly with any other indemnifying party similarly notified) will be entitled to assume the defense thereof, with counsel of its own selection reasonably satisfactory to Indemnitee. After notice from the Indemnitors Company to Indemnitee of the Indemnitors’ its election so to assume the defense thereof, the Indemnitors Company will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof of such Proceeding other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own separate counsel in such Proceeding, Proceeding but the fees and disbursements expenses of such counsel incurred after notice from the Indemnitors Company of the Indemnitors’ its assumption of the defense thereof shall be at the expense of the Indemnitee unless (ai) the employment by Company has authorized Indemnitee to employ separate counsel by Indemnitee and has been authorized by agreed to assume the Indemnitors, reasonable fees and expenses of such counsel; (bii) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitors Company and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) Proceeding; or (diii) the Indemnitors Company shall not in fact have employed counsel to assume the defense of such actionProceeding, in each of which cases the reasonable fees and disbursements expenses of counsel shall be at the expense of the IndemnitorsCompany. The Indemnitors Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Indemnitors, Company or as to which an Indemnitee shall have reached made the conclusion specified provided for in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (cii) above.
(Cc) The Indemnitors Company shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action Proceedings or claim claims effected without the Indemnitors’ its prior written consent. The Indemnitors Company shall not settle any action Proceeding or claim in any manner that would which might impose any liability, penalty or limitation on Indemnitee without Indemnitee’s 's prior written consent. Neither the Indemnitors Company nor Indemnitee will unreasonably withhold or delay their consent to any proposed settlement.
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Notification and Defense of Claims. The Promptly after receipt by the Indemnitee agrees promptly of notice of the commencement of any Proceeding, the Indemnitee will, if a claim in respect thereof is to be made against the MLP under this Agreement, notify the Indemnitors MLP in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, the commencement thereof; but the failure omission to so to notify the Indemnitors MLP will not relieve the Indemnitors MLP from any liability that the Indemnitors it may have to the Indemnitee otherwise than under this Agreement unless or otherwise, except to the Indemnitors are materially prejudiced therebyextent that the MLP may suffer material prejudice by reason of such failure. With Notwithstanding any other provision of this Agreement, with respect to any such Proceeding as to which the Indemnitee notifies gives notice to the Indemnitors MLP of the commencement thereof:
(Aa) The Indemnitors MLP will be entitled to participate therein at their its own expense.
(Bb) Except as otherwise provided belowin this Section 12(b), to the extent that it may wish, the Indemnitors will MLP, with any other indemnifying party similarly notified, shall be entitled to assume the defense thereof, thereof with counsel reasonably satisfactory to the Indemnitee. After notice from the Indemnitors MLP to the Indemnitee of the Indemnitors’ MLP’s election to so to assume the defense thereof, the Indemnitors will MLP shall not be liable to the Indemnitee under this Agreement for any legal or other expenses Expenses subsequently incurred by the Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. The Indemnitee shall have the right to employ the Indemnitee’s own counsel in such Proceeding, but the fees and disbursements Expenses of such counsel incurred after notice from the Indemnitors MLP of the Indemnitors’ its assumption of the defense thereof shall be at the expense of Indemnitee the Indemnitee, unless (ai) the employment by of counsel by the Indemnitee has been authorized by the IndemnitorsMLP, (bii) the Indemnitee shall have reasonably concluded that there may be is a conflict of interest between the Indemnitors MLP, on one hand, and the Indemnitee Indemnitee, on the other, in the conduct of the defense of such action, (c) action and such Proceeding seeks penalties or other relief against determination by the Indemnitee with respect to which the Indemnitors could not provide monetary indemnification shall be supported by an opinion of counsel provided to the Indemnitee (such as injunctive relief or incarceration) MLP, which opinion shall be reasonably acceptable to the MLP, or (diii) the Indemnitors MLP shall not in fact have employed counsel to assume the defense of the action within a reasonable time after the MLP has provided notice to the Indemnitee of the MLP’s election to assume the defense of such action, in each of which cases the fees and disbursements Expenses of such counsel shall be at the expense of the IndemnitorsMLP. The Indemnitors MLP shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Indemnitors, MLP or as to which the Indemnitee shall have reached the conclusion specified provided for in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (cii) above.
(Cc) The Indemnitors MLP shall not be liable to indemnify the Indemnitee under this Agreement for any amounts paid in settlement of any action or claim Proceeding effected without the Indemnitors’ its written consent, which consent shall not be unreasonably withheld. The Indemnitors MLP shall not be required to obtain the consent of the Indemnitee to settle any action or claim Proceeding that the MLP has undertaken to defend if the MLP assumes full and sole responsibility for such settlement and such settlement grants the Indemnitee a complete and unqualified release in respect of any manner that would potential liability and does not impose any penalty future restriction or limitation on Indemnitee.
(d) If, at the time of the receipt of a notice of a claim pursuant to this Section 12, the MLP or the GP has director and officer liability insurance in effect for the benefit of the MLP, the MLP shall give prompt notice of the commencement of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. The MLP shall thereafter take all reasonably necessary or desirable action to cause such insurers to comply with such policies including, without limitation, to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of the policies.
(e) If the Indemnitee without is a director but not an officer of the GP, the Indemnitee’s written consent, together with the other indemnified directors who are not officers of the GP and are seeking indemnification (the “Outside Directors”), shall be entitled to employ, and be reimbursed for the Expenses of, a single counsel separate from that chosen by the indemnitees who are officers of the GP. Neither The principal counsel for Outside Directors (“Principal Counsel”) shall be determined by majority vote of the Indemnitors nor Outside Directors who are seeking indemnification, and the Principal Counsel for the Indemnitees who are not Outside Directors (“Separate Counsel”) shall be determined by majority vote of such indemnitees, in each case subject to the consent of the MLP (not to be unreasonably withheld or delayed). The obligation of the MLP to reimburse the Indemnitee will unreasonably withhold for the Expenses of counsel hereunder shall not extend to Expenses of any counsel employed by the Indemnitee other than Principal Counsel or delay consent Separate Counsel, as the case may be, unless the Indemnitee has interests that are different from those of the other indemnitees or defenses available to any proposed settlementhim that are in addition to or different from those of the other indemnitees such that Principal Counsel or Separate Counsel, as the case may be, would have an actual or potential conflict of interest in representing the Indemnitee.
Appears in 1 contract
Samples: Indemnification Agreement (Compressco Partners, L.P.)
Notification and Defense of Claims. The Promptly after receipt by Indemnitee agrees promptly to of notice of the commencement of any Claim, Indemnitee shall notify the Indemnitors in writing upon being served with any summonsCorporation of the commencement thereof; provided, citationhowever, subpoena, complaint, indictment, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but that the failure so to notify the Indemnitors will not Corporation shall relieve the Indemnitors Corporation from any obligation or liability that the Indemnitors Corporation may have to Indemnitee under this Agreement unless only if and to the Indemnitors extent that the Corporation's rights hereunder are materially prejudiced therebyby such omission. If at the time the Corporation receives such notice, the Corporation has D&O Insurance in effect, the Corporation shall give prompt notice of the commencement of Claim to the insurer(s) in accordance with the procedures set forth in the policy or policies in favor of Indemnitee. The Corporation thereafter shall take all necessary or desirable action to cause such insurer(s) to pay, or advance, to or on behalf of Indemnitee, all losses, costs and expenses payable as a result of such Claim in accordance with the terms of such policy or policies. The provisions of this agreement shall in no way relieve or modify any obligation(s) or liability or liabilities of any insurer under any D&O Insurance or other applicable insurance policy. With respect to any such Proceeding Claim as to which Indemnitee notifies the Indemnitors Corporation of the commencement thereof:
(Aa) The Indemnitors will Corporation shall be entitled to participate therein at their its own expense.
(Bb) Except to the extent such Claim is brought by or in the right of the Corporation and/or as otherwise provided below, to the Indemnitors will extent that it may wish, the Corporation jointly with any other indemnifying party similarly notified shall be entitled to assume the defense thereofof Indemnitee in respect of such Claim, at the Corporation's own expense, with counsel reasonably satisfactory to approved by Indemnitee, whose approval shall not be unreasonably withheld. After notice from the Indemnitors Corporation to Indemnitee of the Indemnitors’ Corporation's election so to assume the defense thereofsuch defense, the Indemnitors will Corporation shall not be liable to Indemnitee under this Agreement agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof thereof, other than reasonable costs as expressly
(i) Such retention (or continued retention) of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors of the Indemnitors’ assumption of the defense thereof shall be at the expense of Indemnitee unless (a) the employment by counsel by Indemnitee has been authorized or consented to by the Indemnitors, Corporation;
(bii) the Counsel employed by Indemnitee shall have reasonably concluded that there is or may be a conflict of interest between the Indemnitors Indemnitee and the Corporation with respect to such action, in which event counsel employed by Indemnitee also shall be entitled to participate in the conduct of the defense of Indemnitee in connection with such actionClaim;
(iii) The counsel retained by the Corporation to assume the defense of Indemnitee in such proceeding shall also be representing in such action the Corporation and/or one or more other parties; such counsel shall have concluded that there is an actual conflict of interest between Indemnitee and the one or more of such other parties (including, (c) if applicable, the Corporation); and within 10 business days after the Corporation is notified of such Proceeding seeks penalties conflict, separate counsel shall not have been retained by the Corporation to represent either the party or other relief against the Indemnitee parties with respect to which the Indemnitors could not provide monetary indemnification to the whom there is such conflict of interest or Indemnitee (in which case such as injunctive relief or incarcerationcounsel shall be selected by Indemnitee and approved by the Corporation, whose approval shall not be unreasonably withheld); or
(iv) or (d) the Indemnitors The Corporation shall not in fact have employed retained counsel to assume the defense of Indemnitee in connection with such action, in . In each of which cases the above cases, the fees and disbursements expenses of counsel employed by Indemnitee shall be at the expense of the Indemnitors. Corporation.
(c) The Indemnitors Corporation shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Indemnitors, or as to which Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) above.
(C) The Indemnitors shall not be liable required to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action or claim Claim effected without the Indemnitors’ Corporation's written consent. The Indemnitors Corporation shall not settle any action or claim Claim in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s 's written consent. Neither the Indemnitors Corporation nor Indemnitee will shall unreasonably withhold or delay consent to any such proposed settlement.
Appears in 1 contract
Notification and Defense of Claims. The Indemnitee agrees promptly Promptly after receipt by Director of notice of the commencement of any action, suit or proceeding, Director will, if a claim in respect thereof is to be made under this Agreement, notify Bancorp of the Indemnitors in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, commencement thereof; but the failure omission so to notify the Indemnitors Bancorp will not relieve the Indemnitors it from any liability that the Indemnitors may have its obligations to Indemnitee Director under this Agreement unless the Indemnitors are materially Bancorp shall be prejudiced therebyby reason of such omission. With respect to any such Proceeding action, suit or proceeding as to which Indemnitee Director notifies the Indemnitors Bancorp of the commencement thereof:
(A) The Indemnitors will 7.1. Bancorp shall be entitled to participate therein at their its own expense.
(B) 7.2. Except as otherwise provided below, the Indemnitors Bancorp jointly with any other indemnifying party similarly notified will be entitled to assume the defense thereof, with counsel reasonably satisfactory to IndemniteeDirector. After notice from the Indemnitors Bancorp to Indemnitee Director of the Indemnitors’ its election so to assume the defense thereof, the Indemnitors Bancorp will not be liable to Indemnitee Director under this Agreement for any legal or other expenses subsequently incurred by Indemnitee Director in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee Director shall have the no right to employ Indemnitee’s own counsel in such Proceedingaction, suit or proceeding, but the fees and disbursements expenses of such counsel incurred after notice from the Indemnitors Bancorp of the Indemnitors’ its assumption of the defense thereof shall be at the expense of Indemnitee Director unless (ai) the employment by of counsel by Indemnitee Director has been authorized by the IndemnitorsBancorp, (bii) the Indemnitee Director shall have reasonably concluded that there may be a conflict of interest between the Indemnitors Bancorp and the Indemnitee Director in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) action or (diii) the Indemnitors Bancorp shall not in fact have employed counsel reasonably satisfactory to Director to assume the defense of such action, in each of which cases the fees and disbursements expenses of counsel employed by Director shall be at the expense of the IndemnitorsBancorp. The Indemnitors Bancorp shall not be entitled to assume the defense of any Proceeding action, suit or proceeding brought by or on behalf of the Indemnitors, Bancorp or as to which Indemnitee Director shall have reached the conclusion specified in right to employ counsel at Bancorp's expense pursuant to clause (bii) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (ciii) above.
(C) The Indemnitors 7.3. Bancorp shall not be liable to indemnify Indemnitee Director under this Agreement for any amounts paid in settlement of any action or claim Claim effected without the Indemnitors’ its written consent. The Indemnitors Bancorp shall not settle any action or claim Claim in any manner that which would impose any penalty or limitation on Indemnitee Director without Indemnitee’s Director's written consent. Neither the Indemnitors Bancorp nor Indemnitee Director will unreasonably withhold or delay their consent to any proposed settlement.
Appears in 1 contract
Notification and Defense of Claims. The Promptly after receipt by Indemnitee agrees promptly to of notice of the commencement of any Claim, Indemnitee shall notify the Indemnitors in writing upon being served with any summonsCorporation of the commencement thereof; provided, citationhowever, subpoena, complaint, indictment, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but that the failure so to notify the Indemnitors will not Corporation shall relieve the Indemnitors Corporation from any obligation or liability that the Indemnitors Corporation may have to Indemnitee under this Agreement unless only if and to the Indemnitors extent that the Corporation's rights hereunder are materially prejudiced therebyby such omission. If, at the time the Corporation receives such notice, the Corporation has D&O Insurance in effect, the Corporation shall give prompt notice of the commencement of Claim to the insurer(s) in accordance with the procedures set forth in the policy or policies in favor of Indemnitee. The Corporation thereafter shall take all necessary or desirable action to cause such insurer(s) to pay, or advance, to or on behalf of Indemnitee, all losses, costs and expenses payable as a result of such Claim in accordance with the terms of such policy or policies. The provisions of this Agreement shall in no way relieve or modify any obligation(s) or liability or liabilities of any insurer under any D&O Insurance or other applicable insurance policy. With respect to any such Proceeding Claim as to which Indemnitee notifies the Indemnitors Corporation of the commencement thereof:
(Aa) The Indemnitors will Corporation shall be entitled to participate therein at their its own expense.
(Bb) Except to the extent such Claim is brought by or in the right of the Corporation and/or as otherwise provided below, to the Indemnitors will extent that it may wish, the Corporation jointly with any other indemnifying party similarly notified, shall be entitled to assume the defense thereofof Indemnitee in respect of such Claim, at the Corporation's own expense, with counsel reasonably satisfactory to approved by Indemnitee, whose approval shall not be unreasonably withheld. After notice from the Indemnitors Corporation to Indemnitee of the Indemnitors’ Corporation's election so to assume the defense thereofsuch defense, the Indemnitors will Corporation shall not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof thereof, other than reasonable costs of investigation or as otherwise expressly provided to the contrary below. Indemnitee shall have the right to employ Indemnitee’s his own counsel in connection with such ProceedingClaim, but the fees and disbursements expenses of such counsel incurred after notice from the Indemnitors Corporation of the Indemnitors’ its assumption of the defense thereof shall be at the expense of Indemnitee unless unless:
(ai) the employment by Such retention (or continued retention) of counsel by Indemnitee has been authorized or consented to by the Indemnitors, Corporation;
(bii) the Counsel employed by Indemnitee shall have reasonably concluded that there is or may be a conflict of interest between the Indemnitors Indemnitee and the Corporation with respect to such action, in which event counsel employed by Indemnitee also shall be entitled to participate in the conduct of the defense of Indemnitee in connection with such actionClaim;
(iii) The counsel retained by the Corporation to assume the defense of Indemnitee in such proceeding shall also be representing in such action the Corporation and/or one or more other parties; such counsel shall have concluded that there is an actual conflict of interest between Indemnitee and the one or more of such other parties (including, (c) if applicable, the Corporation); and within 10 business days after the Corporation is notified of such Proceeding seeks penalties conflict, separate counsel shall have been retained by the Corporation to represent either the party or other relief against the Indemnitee parties with respect to which the Indemnitors could not provide monetary indemnification to the whom there is such conflict of interest or Indemnitee (in which case such as injunctive relief or incarcerationcounsel shall be selected by Indemnitee and approved by the Corporation, whose approval shall not be unreasonably withheld); or
(iv) or (d) the Indemnitors The Corporation shall not in fact have employed retained counsel to assume the defense of Indemnitee in connection with such action, in . In each of which cases the above cases, the fees and disbursements expenses of counsel employed by Indemnitee shall be at the expense of the Indemnitors. Corporation.
(c) The Indemnitors Corporation shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Indemnitors, or as to which Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) above.
(C) The Indemnitors shall not be liable required to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action or claim Claim effected without the Indemnitors’ Corporation's written consent. The Indemnitors Corporation shall not settle any action or claim Claim in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s 's written consent. Neither the Indemnitors Corporation nor Indemnitee will shall unreasonably withhold or delay consent to any such proposed such settlement.
Appears in 1 contract
Samples: Indemnification Agreement (Starwood Hotel & Resorts Worldwide Inc)
Notification and Defense of Claims. The Indemnitee agrees Any party seeking information or reimbursement for Claims hereunder (the "Indemnified Party") shall as promptly to as practicable notify the Indemnitors in writing party from which such indemnification is sought (the "Indemnifying Party") upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating which the Indemnified Party intends to any Proceeding or matter which may be subject to base a claim for indemnification or advancement of Expenses covered reimbursement hereunder; provided, but however, that the failure of an Indemnified Party so to notify the Indemnitors will Indemnifying Party shall not relieve the Indemnitors Indemnifying Party from any liability that the Indemnitors may have to Indemnitee under this Agreement unless to the Indemnitors are materially Indemnified Party with respect to such Claim except to the extent the Indemnifying Party is actually prejudiced therebyor damaged by the failure to receive timely notice. With In the event of any claims for indemnification or reimbursement, the Indemnifying Party, at its option, may assume (with legal counsel reasonably acceptable to the Indemnified Party) the defense of any claim, demand, lawsuit or other Proceeding brought against the Indemnified Party, which claim, demand, lawsuit or other Proceeding may give rise to the indemnity or reimbursement obligation of the Indemnifying Party hereunder, and may assert any defense of any party; provided, however, that the Indemnified Party shall have the right at its own expense to participate jointly with the Indemnifying Party in the defense of any claim, demand, lawsuit or other Proceeding in connection with which the Indemnified Party claims indemnification or reimbursement hereunder. Notwithstanding the right of an Indemnified Party so to participate, the Indemnifying Party shall have the sole right to settle or otherwise dispose of such claim, demand, lawsuit or other Proceeding on such terms as the Indemnifying Party, in its sole discretion, shall deem appropriate with respect to any issue involved in such claim, demand, lawsuit or other Proceeding as to which Indemnitee notifies (i) the Indemnitors of Indemnifying Party shall have acknowledged the commencement thereof:
obligation to indemnify the Indemnified Party hereunder and -xix- the settlement is solely for cash or (Aii) The Indemnitors will be entitled the Indemnified Party shall have declined so to participate therein at their own expense.
(B) Except as otherwise provided belowand, in either case, the Indemnitors will be entitled to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Indemnitors to Indemnitee Indemnified Party is provided a full and complete release of the Indemnitors’ election so to assume the defense thereof, the Indemnitors will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors of the Indemnitors’ assumption of the defense thereof shall be at the expense of Indemnitee unless (a) the employment by counsel by Indemnitee has been authorized by the Indemnitors, (b) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitors and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the Indemnitors. The Indemnitors shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Indemnitors, or as to which Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) aboveClaims.
(C) The Indemnitors shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action or claim effected without the Indemnitors’ written consent. The Indemnitors shall not settle any action or claim in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s written consent. Neither the Indemnitors nor Indemnitee will unreasonably withhold or delay consent to any proposed settlement.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Nesco Inc/Ok)
Notification and Defense of Claims. The Indemnitee agrees promptly to notify the Indemnitors Indemnitor in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but the failure so to notify the Indemnitors Indemnitor will not relieve the Indemnitors Indemnitor from any liability that the Indemnitors Indemnitor may have to Indemnitee under this Agreement unless the Indemnitors are Indemnitor is materially prejudiced thereby. With respect to any such Proceeding as to which Indemnitee notifies the Indemnitors Indemnitor of the commencement thereof:
(Aa) The Indemnitors Indemnitor will be entitled to participate therein at their its own expense.
(Bb) Except as otherwise provided below, the Indemnitors Indemnitor will be entitled to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Indemnitors Indemnitor to Indemnitee of the Indemnitors’ Indemnitor’s election so to assume the defense thereof, the Indemnitors Indemnitor will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors Indemnitor of the Indemnitors’ Indemnitor’s assumption of the defense thereof shall be at the expense of Indemnitee unless (a) the employment by counsel by Indemnitee has been authorized by the IndemnitorsIndemnitor, (b) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitors Indemnitor and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors Indemnitor could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors Indemnitor shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the IndemnitorsIndemnitor. The Indemnitors Indemnitor shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the IndemnitorsIndemnitor, or as to which Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) above.
(Cc) The Indemnitors Indemnitor shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action or claim effected without the Indemnitors’ Indemnitor’s written consent. The Indemnitors Indemnitor shall not settle any action or claim in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s written consent. Neither the Indemnitors Indemnitor nor Indemnitee will unreasonably withhold or delay consent to any proposed settlement.
Appears in 1 contract
Samples: Indemnification Agreement (Colony American Homes, Inc.)
Notification and Defense of Claims. The (a) If Indemnitee agrees promptly to notify receives notice, otherwise than from the Indemnitors in writing upon being served with any summonsCompany, citation, subpoena, complaint, indictment, informationthat Indemnitee is or will be made, or other document relating is threatened to be made, a party to any Proceeding or matter in respect of which may be subject Indemnitee intends to seek indemnification or advancement of Expenses covered hereunder, but the failure so to Indemnitee must promptly notify the Indemnitors Company in writing of the nature and, to Indemnitee’s knowledge, status of that Proceeding. If this Section 4(a) requires Indemnitee to give such a notice, but Indemnitee fails to do so, that failure will not relieve the Indemnitors Company from any liability that the Indemnitors obligations the Company may have to indemnify Indemnitee under this Agreement Agreement, unless the Indemnitors are materially prejudiced thereby. With Company can establish that the failure has resulted in actual prejudice to the Company.
(b) Except as this Section 4(b) otherwise provides below, in the case of any Proceeding in respect to any such Proceeding as to of which Indemnitee notifies the Indemnitors of the commencement thereofseeks indemnification hereunder:
(A1) The Indemnitors the Company and any Related Enterprise that also may be obligated to indemnify Indemnitee in respect of that Proceeding will be entitled to participate therein at their its own expense.expense in that Proceeding;
(B2) Except as otherwise provided belowthe Company or that Related Enterprise, the Indemnitors or either of them, will be entitled to assume the defense thereofof all Claims, with counsel other than (A) Company Claims, if any, and (B) other Claims, if any, as to which Indemnitee shall reasonably satisfactory reach the conclusion clause (3) of the next sentence describes, in that Proceeding against Indemnitee by prompt written notice of that election to Indemnitee. After notice from ; and
(3) if clause (2) above entitles the Indemnitors to Indemnitee of the Indemnitors’ election so Company or that Related Enterprise to assume the defense thereofof any of those Claims and it delivers to Indemnitee notice of that assumption under clause (2), the Indemnitors Company will not be liable to Indemnitee under this Agreement hereunder for any fees or expenses of legal or other expenses subsequently incurred by counsel for Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided belowwhich Indemnitee incurs after Indemnitee receives that notice. Indemnitee shall will have the right to employ employee Indemnitee’s own legal counsel in such that Proceeding, but but, as clause (3) of the preceding sentence provides, will bear the fees and disbursements expenses of such that counsel incurred after notice from the Indemnitors of the Indemnitors’ assumption of the defense thereof shall be at the expense of Indemnitee unless unless:
(a1) the employment by counsel by Company has authorized Indemnitee has been authorized by the Indemnitors, in writing to retain that counsel;
(b2) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitors and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors Company shall not in fact within a reasonable period of time actually have employed counsel to assume the defense of such action, in each those Claims; or
(3) Indemnitee shall have (A) reasonably concluded that a conflict of which cases interest may exist between Indemnitee and the fees and disbursements of counsel shall be at the expense of the Indemnitors. The Indemnitors shall not be entitled Company as to assume the defense of any Proceeding brought by one or on behalf more of those Claims and (B) communicated that conclusion to the Indemnitors, or as to which Indemnitee shall have reached the conclusion specified Company in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause writing.
(c) above.
(C) The Indemnitors shall Company will not be liable obligated hereunder to, or to cause another Company Entity to, indemnify Indemnitee under this Agreement for against or hold Indemnitee harmless from and in respect of any amounts paid paid, or agreed to be paid, by Indemnitee in settlement of any action or claim effected Claim against Indemnitee which Indemnitee effects without the Indemnitors’ Company’s prior written consent. The Indemnitors shall Company will not settle any action or claim Claim against Indemnitee in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s prior written consent. Neither the Indemnitors Company nor Indemnitee will unreasonably delay or withhold or delay consent to any proposed settlementsuch settlement the other party proposes to effect.
Appears in 1 contract
Samples: Indemnification Agreement (Oceaneering International Inc)
Notification and Defense of Claims. The (a) Indemnitee agrees promptly to shall notify the Indemnitors Company in writing as soon as practicable of any Claim that could relate to an Indemnifiable Event or for which Indemnitee could seek Expense Advances, including a brief description (based upon being served with any summonsinformation then available to Indemnitee) of the nature of, citationand the facts underlying, subpoena, complaint, indictment, information, or other document relating such Claim. The failure by Indemnitee to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but the failure so to timely notify the Indemnitors will Company hereunder shall not relieve the Indemnitors Company from any liability hereunder, unless the Company shall have lost significant substantive or procedural rights with respect to the defense of any Claim as a result of such omission to so notify and except that the Indemnitors may have Company shall not be liable to indemnify Indemnitee under this Agreement unless the Indemnitors are materially prejudiced thereby. With with respect to any judicial award in a Claim related to an Indemnifiable Event if the Company was not given a reasonable and timely opportunity to participate at its expense in the defense of such Proceeding as to which Indemnitee notifies the Indemnitors of the commencement thereof:action.
(Ab) The Indemnitors will Company shall be entitled to participate therein at their own expense.
(B) Except as otherwise provided below, in the Indemnitors will be entitled defense of any Claim relating to an Indemnifiable Event or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Indemnitors to ; provided that, if Indemnitee of the Indemnitors’ election so to assume the defense thereofbelieves, the Indemnitors will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred after consultation with counsel selected by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors of the Indemnitors’ assumption of the defense thereof shall be at the expense of Indemnitee unless that (a) the employment by use of counsel by Indemnitee has been authorized chosen by the IndemnitorsCompany to represent Indemnitee would present such counsel with an actual or potential conflict of interest, (b) the named parties in any such Claim (including any impleaded parties) include the Company or any subsidiary of the Company, on the one hand, and Indemnitee, on the other hand, and Indemnitee shall have reasonably concluded concludes, after consultation with counsel selected by Indemnitee, that there may be a conflict of interest between one or more legal defenses available to him that are different from or in addition to those available to the Indemnitors and the Indemnitee in the conduct Company or any subsidiary of the defense of such actionCompany, or (c) any such Proceeding seeks penalties or other relief against representation by such counsel would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee with respect to which the Indemnitors could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the Indemnitors. The Indemnitors shall not be entitled to assume the defense retain separate counsel (but not more than one law firm, plus, if applicable, local counsel in respect of any Proceeding brought by or on behalf of particular Claim) at the Indemnitors, or as to which Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) above.
(C) Company’s expense. The Indemnitors Company shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action or claim Claim relating to an Indemnifiable Event effected without the Indemnitors’ Company’s prior written consent. The Indemnitors Company shall not settle not, without the prior written consent of Indemnitee, effect any action settlement of any Claim relating to an Indemnifiable Event to which Indemnitee is or claim in any manner could have been a party unless such settlement involves solely the payment of money and includes a complete and unconditional release of Indemnitee from all liability on all claims that would impose any penalty or limitation on Indemnitee without Indemnitee’s written consentare the subject matter of such Claim. Neither the Indemnitors Company nor Indemnitee will shall unreasonably withhold withhold, condition, or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee. In no event shall Indemnitee be required to waive, prejudice, or limit attorney-client privilege or work-product protection or other applicable privilege or protection.
Appears in 1 contract
Notification and Defense of Claims. The Indemnitee agrees promptly to notify the Indemnitors in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but the failure so to notify the Indemnitors will not relieve the Indemnitors from any liability that the Indemnitors may have to Indemnitee under this Agreement unless the Indemnitors are materially prejudiced thereby. With respect to any such Proceeding as to which Indemnitee notifies the Indemnitors of the commencement thereof:
(A) The Indemnitors will be entitled to participate therein at their own expense.
(B) Except as otherwise provided below, the Indemnitors will be entitled to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Indemnitors to Indemnitee of the Indemnitors’ election so to assume the defense thereof, the Indemnitors will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors of the Indemnitors’ assumption of the defense thereof shall be at the expense of Indemnitee unless (a) the employment by of counsel by Indemnitee has been authorized by the Indemnitors, (b) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitors and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the Indemnitors. The Indemnitors shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Indemnitors, or as to which Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) above.
(C) The Indemnitors shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action or claim effected without the Indemnitors’ written consent. The Indemnitors shall not settle any action or claim in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s written consent. Neither the Indemnitors nor Indemnitee will unreasonably withhold or delay consent to any proposed settlement.
Appears in 1 contract
Notification and Defense of Claims. The (a) If Indemnitee agrees promptly to notify receives notice, otherwise than from the Indemnitors in writing upon being served with any summonsCompany or the Partnership, citation, subpoena, complaint, indictment, informationthat Indemnitee is or will be made, or other document relating is threatened to be made, a party to any Proceeding or matter in respect of which may be subject Indemnitee intends to seek indemnification or advancement of Expenses covered hereunder, but the failure so to Indemnitee must promptly notify the Indemnitors Company and the Partnership in writing of the nature and, to Indemnitee’s knowledge, status of that Proceeding. If this Section 5(a) requires Indemnitee to give such a notice, but Indemnitee fails to do so, that failure will not relieve the Indemnitors from any liability that Company or the Indemnitors Partnership from, or otherwise affect, the obligations the Company or the Partnership may have to indemnify Indemnitee under this Agreement Agreement, unless the Indemnitors are materially prejudiced thereby. With Company and the Partnership can establish that the failure has resulted in actual prejudice to the Company and the Partnership.
(b) Except as this Section 5(b) otherwise provides below, in the case of any Proceeding in respect to any such Proceeding as to of which Indemnitee notifies the Indemnitors of the commencement thereofseeks indemnification hereunder:
(A1) The Indemnitors the Company, the Partnership any Related Enterprise that also may be obligated to indemnify Indemnitee in respect of that Proceeding will be entitled to participate therein at their its own expense.expense in that Proceeding;
(B2) Except as otherwise provided belowthe Company, the Indemnitors Partnership or that Related Enterprise, or either of them, will be entitled to assume the defense thereofof all Claims, with counsel other than (i) Company Claims, if any, and (ii) other Claims, if any, as to which Indemnitee shall reasonably satisfactory reach the conclusion described in clause (C) of the next sentence below, in that Proceeding against Indemnitee by prompt written notice of that election to Indemnitee. After notice from ; and
(3) if clause (2) above entitles the Indemnitors to Indemnitee of the Indemnitors’ election so Company or that Related Enterprise to assume the defense thereofof any of those Claims and it delivers to Indemnitee notice of that assumption under clause (2), the Indemnitors Company and the Partnership will not be liable to Indemnitee under this Agreement hereunder for any fees or expenses of legal or other expenses subsequently incurred by counsel for Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided belowwhich Indemnitee incurs after Indemnitee receives that notice. Indemnitee shall will have the right to employ Indemnitee’s own legal counsel in such that Proceeding, but but, as clause (3) of the preceding sentence provides, will bear the fees and disbursements expenses of such that counsel incurred after notice from the Indemnitors of the Indemnitors’ assumption of the defense thereof shall be at the expense of Indemnitee unless unless:
(aA) the employment by counsel by Company or the Partnership has authorized Indemnitee has been authorized by the Indemnitors, in writing to retain that counsel;
(bB) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between Company or the Indemnitors and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors Partnership shall not in fact within a reasonable period of time actually have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the Indemnitors. The Indemnitors shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Indemnitors, or as to which Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) above.those Claims; or
(C) Indemnitee shall have (i) reasonably concluded that a conflict of interest may exist between Indemnitee, on the one hand, and the Company or the Partnership, on the other hand, as to the defense of one or more of those Claims and (ii) communicated that conclusion to the Company and the Partnership in writing.
(c) The Indemnitors shall Company and the Partnership will not be liable obligated hereunder to, or to cause another Partnership Entity to, indemnify Indemnitee under this Agreement for against or hold Indemnitee harmless from and in respect of any amounts paid paid, or agreed to be paid, by Indemnitee in settlement of any action or claim effected Claim against Indemnitee which Indemnitee effects without the Indemnitors’ Company’s or the Partnership’s prior written consent. The Indemnitors shall Company and the Partnership will not settle any action or claim Claim against Indemnitee in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s prior written consent. Neither the Indemnitors Company, the Partnership nor Indemnitee will unreasonably delay or withhold or delay consent to any proposed settlementsuch settlement the other party proposes to effect.
Appears in 1 contract
Notification and Defense of Claims. The Indemnitee agrees promptly Promptly after receipt by Director of notice of the commencement of any action, suit or proceeding, Director will, if a Claim in respect thereof is to be made under this Agreement, notify the Indemnitors in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement Company of Expenses covered hereunder, the commencement thereof; but the failure omission to so to notify the Indemnitors Company will not relieve the Indemnitors it from any liability that the Indemnitors may have its obligations to Indemnitee Director under this Agreement unless the Indemnitors are materially Company shall be prejudiced therebyby reason of such omission. With respect to any such Proceeding action, suit or proceeding as to which Indemnitee Director notifies the Indemnitors Company of the commencement thereof:
(A) 7.1 The Indemnitors will Company shall be entitled to participate therein at their its own expense.
(B) 7.2 Except as otherwise provided below, the Indemnitors Company jointly with any other indemnifying party similarly notified will be entitled to assume the defense thereof, with counsel reasonably satisfactory to IndemniteeDirector. After notice from the Indemnitors Company to Indemnitee Director of the Indemnitors’ its election so to assume the defense thereof, the Indemnitors Company will not be liable to Indemnitee Director under this Agreement for any legal or other expenses subsequently incurred by Indemnitee Director in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee Director shall have the right to employ Indemnitee’s own counsel in such Proceedingaction, suit or proceeding, but the fees and disbursements expenses of such counsel incurred after notice from the Indemnitors Company of the Indemnitors’ its assumption of the defense thereof shall be at the expense of Indemnitee Director unless (ai) the employment by of counsel by Indemnitee Director has been authorized by the IndemnitorsCompany, (bii) the Indemnitee Director shall have reasonably concluded that there may be a conflict of interest between the Indemnitors Company and the Indemnitee Director in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) action or (diii) the Indemnitors Company shall not in fact have employed counsel reasonably satisfactory to Director to assume the defense of such action, in each of which cases the fees and disbursements expenses of counsel employed by Director shall be at the expense of the IndemnitorsCompany; provided, however, that the Company shall not, in connection with any one such action, claim or proceeding or separate but substantially similar or related actions, claims or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for all such directors of the Company, unless in the reasonable judgment of any such director a conflict of interest may exist between such director and any other of such directors with respect to such action, claim or proceeding, in which event the Company shall be obligated to pay the fees and expenses of such additional counsel. The Indemnitors Company shall not be entitled to assume the defense of any Proceeding action, suit or proceeding brought by or on behalf of the Indemnitors, Company or as to which Indemnitee Director shall have reached the conclusion specified in right to employ counsel at the Company's expense pursuant to clause (bii) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (ciii) above.
(C) 7.3 The Indemnitors Company shall not be liable to indemnify Indemnitee Director under this Agreement for any amounts paid in settlement of any action or claim Claim effected without the Indemnitors’ its written consent. The Indemnitors Company shall not settle any action or claim Claim in any manner that which would impose any penalty or limitation on Indemnitee Director without Indemnitee’s Director's written consent. Neither the Indemnitors Company nor Indemnitee Director will unreasonably withhold or delay its consent to any proposed settlement.
Appears in 1 contract
Notification and Defense of Claims. The Indemnitee agrees promptly to notify the Indemnitors Indemnitor in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but the failure so to notify the Indemnitors Indemnitor will not relieve the Indemnitors Indemnitor from any liability that the Indemnitors Indemnitor may have to Indemnitee under this Agreement unless the Indemnitors are Indemnitor is materially prejudiced thereby. With respect to any such Proceeding as to which Indemnitee notifies the Indemnitors Indemnitor of the commencement thereof:
(A) The Indemnitors Indemnitor will be entitled to participate therein at their its own expense.
(B) Except as otherwise provided below, the Indemnitors Indemnitor will be entitled to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Indemnitors Indemnitor to Indemnitee of the Indemnitors’ Indemnitor’s election so to assume the defense thereof, the Indemnitors Indemnitor will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection \\DC - 033331/000003 - 2937071 v5 with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors Indemnitor of the Indemnitors’ Indemnitor’s assumption of the defense thereof shall be at the expense of Indemnitee unless (a) the employment by counsel by Indemnitee has been authorized by the IndemnitorsIndemnitor, (b) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitors Indemnitor and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors Indemnitor could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors Indemnitor shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the IndemnitorsIndemnitor. The Indemnitors Indemnitor shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the IndemnitorsIndemnitor, or as to which Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) above.
(C) The Indemnitors Indemnitor shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action or claim effected without the Indemnitors’ Indemnitor’s written consent. The Indemnitors Indemnitor shall not settle any action or claim in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s written consent. Neither the Indemnitors Indemnitor nor Indemnitee will unreasonably withhold or delay consent to any proposed settlement.
Appears in 1 contract
Notification and Defense of Claims. The (a) Indemnitee agrees shall promptly to notify the Indemnitors Company in writing upon being served with of any summons, citation, subpoena, complaint, indictment, information, Claim that could relate to an Indemnifiable Event or other document relating to any Proceeding or matter for which may be subject to Indemnitee could seek indemnification or advancement Expense Advances, including a brief description (based upon information then available to Indemnitee) of Expenses covered hereunderthe nature of, but and the facts underlying, such Claim. The failure so by Indemnitee to timely notify the Indemnitors will Company hereunder shall not relieve the Indemnitors Company from any liability that hereunder except to the Indemnitors may have extent the Company’s ability to Indemnitee under this Agreement unless participate in the Indemnitors are defense of such claim was materially prejudiced thereby. With respect to any and adversely affected by such Proceeding as to which Indemnitee notifies the Indemnitors of the commencement thereof:failure.
(Ab) The Indemnitors will Company shall be entitled to participate therein at their own expense.
(B) Except as otherwise provided below, in the Indemnitors will be entitled defense of any Claim relating to an Indemnifiable Event or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from ; provided that, if Indemnitee believes, after consultation with counsel, that (i) the Indemnitors use of counsel chosen by the Company to represent Indemnitee would present such counsel with an actual or potential conflict of interest, (ii) the named parties in any such Claim (including any impleaded parties) include the Company or any subsidiary of the Indemnitors’ election so to assume Company, on the defense thereofone hand, and Indemnitee, on the Indemnitors will not be liable to other hand, and Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection concludes, after consultation with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceedingcounsel, but the fees and disbursements of such counsel incurred after notice from the Indemnitors of the Indemnitors’ assumption of the defense thereof shall be at the expense of Indemnitee unless (a) the employment by counsel by Indemnitee has been authorized by the Indemnitors, (b) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between one or more legal defenses available to him or her that are different from or in addition to those available to the Indemnitors and the Indemnitee in the conduct Company or any subsidiary of the defense of such actionCompany, (ciii) such Proceeding seeks penalties Indemnitee may be subject to criminal liability or other relief against the Indemnitee with respect to which the Indemnitors could not provide monetary indemnification to the Indemnitee (such as that injunctive relief or incarceration) may be available or (div) any such representation by such counsel would be precluded under the Indemnitors applicable standards of professional conduct then prevailing, then Indemnitee shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the Indemnitors. The Indemnitors shall not be entitled to assume the defense retain separate counsel (but not more than one law firm, plus, if applicable, local counsel in respect of any Proceeding brought by or on behalf of particular Claim) at the Indemnitors, or as to which Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) above.
(C) Company’s expense. The Indemnitors Company shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action or claim Claim relating to an Indemnifiable Event effected without the Indemnitors’ Company’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. The Indemnitors Company shall not, without the prior written consent of Indemnitee, effect any settlement of any Claim relating to an Indemnifiable Event to which Indemnitee is a party except to the extent that such settlement involves solely the payment of money to be paid by the Company and includes a complete and unconditional release of Indemnitee from all liability on all claims that are, or relate to or arise from, the subject matter of such Claim. Indemnitee shall not settle any action or claim in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s written consent. Neither the Indemnitors nor Indemnitee will unreasonably withhold withhold, condition, or delay its, his or her consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee or that includes an admission of wrongdoing or injunctive relief.
Appears in 1 contract
Samples: Indemnification Agreement (We Co.)
Notification and Defense of Claims. 8.1 The Indemnitee agrees will promptly to notify the Indemnitors Company in writing upon being served with or otherwise notified of any summons, citation, subpoena, complaint, indictment, information, notice or other document or communication relating to any Proceeding or matter which may be subject to indemnification against Penalties or advancement the payment of Expenses covered hereunderhereunder or any investigation related to a potential Proceeding, but the failure to so to notify the Indemnitors Company will not relieve the Indemnitors Company from any liability that the Indemnitors Company may have to the Indemnitee under this Agreement unless the Indemnitors are materially Company is actually prejudiced thereby. In addition, the Indemnitee shall give the Company such information and co-operation regarding such Proceeding as the Company may reasonably require.
8.2 With respect to any such Proceeding as to which Indemnitee notifies the Indemnitors of the commencement thereofProceeding:
(Aa) The Indemnitors the Company will be entitled to participate therein at their its own expense.; and
(Bb) Except except as otherwise provided below, the Indemnitors Company will be entitled to assume the defense thereof, with qualified legal counsel reasonably satisfactory chosen at its discretion, upon delivery to Indemniteethe Indemnitee of written notice of its election to do so. After notice from the Indemnitors Company to the Indemnitee of the Indemnitors’ Company’s election so to assume the defense thereof, the Indemnitors Company will not be liable to the Indemnitee under this Agreement for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. If the Company assumes conduct of the defence on behalf of the Indemnitee, the Indemnitee shall consents to the conduct thereof and to any action taken by the Company, in good faith, in connection therewith and the Indemnitee will fully cooperate in the defence including, without limitation, providing documents in the possession or reasonably available to the Indemnitee, attending examinations for discovery, making affidavits, meeting with counsel and testifying and divulging to the Company all information known by the Indemnitee and reasonably required to defend or prosecute the Proceeding. The Indemnitee will have the right to employ the Indemnitee’s own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors Company of the Indemnitors’ Company’s assumption of the defense thereof shall will be at the expense of the Indemnitee unless unless:
(ai) the employment by of counsel by the Indemnitee has been authorized in writing by the Indemnitors, Company;
(bii) the Indemnitee shall have reasonably concluded been advised in a written opinion of counsel acceptable to the Company, acting reasonably, addressed to the Indemnitee and to the Company stating that there may be a conflict of interest between the Indemnitors Company and the Indemnitee in the conduct of the defense of any such action, defence;
(ciii) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors Company could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or ); or
(div) the Indemnitors shall Company has not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of the Indemnitee’s counsel shall will be at the expense of the Indemnitors. Company.
8.3 The Indemnitors shall Company will not be entitled to assume the defense of any Proceeding brought by or on behalf of the IndemnitorsCompany, or as to which Indemnitee shall counsel will have reached the conclusion specified in clause (b) abovesection 8.2(b)(ii), or which involves penalties or other relief against the Indemnitee of the type referred to in clause (c) abovesection 8.2(b)(iii).
(C) The Indemnitors 8.4 If, at the time of the receipt of a notice of a claim pursuant to section 8.1 the Company has a D&O Policy in effect, the Company shall not be liable give prompt notice of such Proceeding to indemnify Indemnitee under this Agreement for any amounts paid the insurers in settlement of any action or claim effected without accordance with the Indemnitors’ written consentprocedures set forth in the respective policies. The Indemnitors Company shall not settle any thereafter take all necessary or desirable action or claim to cause such insurers to pay to the Company, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s written consent. Neither accordance with the Indemnitors nor Indemnitee will unreasonably withhold or delay consent to any proposed settlementterms of such policies.
Appears in 1 contract
Samples: Indemnification Agreement (Medallion Resources LTD)
Notification and Defense of Claims. The Indemnitee agrees promptly to notify the Indemnitors Indemnitor in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but the failure so to notify the Indemnitors Indemnitor will not relieve the Indemnitors Indemnitor from any liability that the Indemnitors Indemnitor may have to Indemnitee under this Agreement unless the Indemnitors are materially prejudiced therebyIndemnitor can establish that such omission to notify resulted in actual and material prejudice to which it cannot be reversed or otherwise eliminated without any material negative effect on the Indemnitor. With respect to any such Proceeding as to which Indemnitee notifies the Indemnitors Indemnitor of the commencement thereof:
(A) The Indemnitors Indemnitor will be entitled to participate therein at their its own expense.
(B) Except as otherwise provided below, the Indemnitors Indemnitor will be entitled to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Indemnitors Indemnitor to Indemnitee of the Indemnitors’ Indemnitor's election so to assume the defense thereof, the Indemnitors Indemnitor will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s 's own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors Indemnitor of the Indemnitors’ Indemnitor's assumption of the defense thereof shall be at the expense of Indemnitee unless (a) the employment by of counsel by the Indemnitee has been authorized by the IndemnitorsIndemnitor, (b) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitors Indemnitor and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors Indemnitor could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors Indemnitor shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the IndemnitorsIndemnitor. The Indemnitors Indemnitor shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the IndemnitorsIndemnitor, or as to which the Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against the Indemnitee of the type referred to in clause (c) above.
(C) The Indemnitors Indemnitor shall not be liable to indemnify the Indemnitee under this Agreement for any amounts paid in settlement of any action or claim effected without the Indemnitors’ Indemnitor's written consent. The Indemnitors Indemnitor shall not settle any action or claim in any manner that would impose any penalty or limitation on the Indemnitee without the Indemnitee’s 's written consent. Neither the Indemnitors Indemnitor nor Indemnitee will unreasonably withhold or delay consent to any proposed settlement.
Appears in 1 contract
Notification and Defense of Claims. (a) The Indemnitee agrees promptly to will notify the Indemnitors Company in writing as soon as practicable of any Claim which could relate to an Indemnifiable Event or for which the Indemnitee could seek Expense Advances, including a brief description (based upon being served with any summonsinformation then available to the Indemnitee) of the nature of, citationand the facts underlying, subpoena, complaint, indictment, information, or other document relating such Claim. The failure by the Indemnitee to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but the failure so to timely notify the Indemnitors Company hereunder will not relieve the Indemnitors Company from any liability that the Indemnitors may have to Indemnitee under this Agreement unless and to the Indemnitors are extent that the Company’s ability to participate in the defense of such claim was materially prejudiced therebyand adversely affected by such failure. With respect to any such Proceeding as to which Indemnitee notifies If at the Indemnitors time of the commencement thereof:receipt of such notice, the Company has directors’ and officers’ liability insurance in effect under which coverage for Claims related to Indemnifiable Events is potentially available, the Company will give prompt written notice to the applicable insurers in accordance with the procedures set forth in the applicable policies. The Company will provide to the Indemnitee a copy of such notice delivered to the applicable insurers, and copies of all subsequent correspondence between the Company and such insurers regarding the Claim, in each case substantially concurrently with the delivery or receipt thereof by the Company.
(Ab) The Indemnitors Company will be entitled to participate therein in the defense of any Claim relating to an Indemnifiable Event at their its own expense.
(B) Except expense and, except as otherwise provided below, to the Indemnitors will be entitled to extent the Company so wishes, it may assume the defense thereof, thereof with counsel reasonably satisfactory to the Indemnitee. After notice from the Indemnitors Company to the Indemnitee of the Indemnitors’ its election so to assume the defense thereofof any such Claim, the Indemnitors Company will not be liable to the Indemnitee under this Agreement or otherwise for any legal or other expenses Expenses subsequently directly incurred by the Indemnitee in connection with the Indemnitee’s defense thereof of such Claim, other than reasonable costs of investigation or as otherwise provided below. The Indemnitee shall will have the right to employ Indemnitee’s its own legal counsel in such ProceedingClaim, but the fees and disbursements of all Expenses related to such counsel incurred after notice from the Indemnitors Company of the Indemnitors’ its assumption of the defense thereof shall will be at the expense of Indemnitee unless Indemnitee’s own expense; provided that if (ai) the Indemnitee’s employment by of its own legal counsel by Indemnitee has been authorized by the IndemnitorsCompany, (bii) the Indemnitee shall have has reasonably concluded determined that there may be a conflict of interest between the Indemnitors Indemnitee and the Indemnitee Company in the conduct of the defense of such actionClaim, (ciii) such Proceeding seeks penalties or other relief against after a Change in Control, the Indemnitee with respect to which Indemnitee’s employment of its own counsel has been approved by the Indemnitors could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) Independent Counsel or (div) the Indemnitors shall Company will not in fact have employed counsel to assume the defense of such actionClaim, in each of which cases then the fees and disbursements of counsel shall be at the expense of the Indemnitors. The Indemnitors shall not Indemnitee will be entitled to assume the defense retain its own separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any Proceeding brought such Claim) and all Expenses related to such separate counsel will be borne by or on behalf of the Indemnitors, or as to which Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) aboveCompany.
(C) The Indemnitors shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action or claim effected without the Indemnitors’ written consent. The Indemnitors shall not settle any action or claim in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s written consent. Neither the Indemnitors nor Indemnitee will unreasonably withhold or delay consent to any proposed settlement.
Appears in 1 contract
Samples: Indemnification Agreement (5E Advanced Materials, Inc.)
Notification and Defense of Claims. The Promptly after receipt by Indemnitee agrees promptly to of notice of the commencement of any Claim, Indemnitee shall notify the Indemnitors in writing upon being served with any summonsTrust of the commencement thereof; provided, citationhowever, subpoena, complaint, indictment, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but that the failure so to notify the Indemnitors will not Trust shall relieve the Indemnitors Trust from any obligation or liability that the Indemnitors Trust may have to Indemnitee under this Agreement unless only if and to the Indemnitors extent that the Trust's rights hereunder are materially prejudiced therebyby such omission. If at the time the Trust receives such notice, the Trust has D&O Insurance in effect, the Trust shall give prompt notice of the commencement of Claim to the insurer(s) in accordance with the procedures set forth in the policy or policies in favor of Indemnitee. The Trust thereafter shall take all necessary or desirable action to cause such insurer(s) to pay, or advance, to or on behalf of Indemnitee, all losses, costs and expenses payable as a result of such Claim in accordance with the terms of such policy or policies. The provisions of this Agreement shall in no way relieve or modify any obligation(s) or liability or liabilities of any insurer under any D&O Insurance or other applicable insurance policy. With respect to any such Proceeding Claim as to which Indemnitee notifies the Indemnitors Trust of the commencement thereof:
(Aa) The Indemnitors will Trust shall be entitled to participate therein at their its own expense.
(Bb) Except to the extent such Claim is brought by or in the right of the Trust and/or as otherwise provided below, to the Indemnitors will extent that it may wish, the Trust, jointly with any other indemnifying party similarly notified, shall be entitled to assume the defense thereofof Indemnitee in respect of such Claim, at the Trust's own expense, with counsel reasonably satisfactory to approved by Indemnitee, whose approval shall not be unreasonably withheld. After notice from the Indemnitors Trust to Indemnitee of the Indemnitors’ Trust's election so to assume the defense thereofsuch defense, the Indemnitors will Trust shall not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof thereof, other than reasonable costs of investigation or as otherwise expressly provided to the contrary below. Indemnitee shall have the right to employ Indemnitee’s his own counsel in connection with such ProceedingClaim, but the fees and disbursements expenses of such counsel incurred after notice from the Indemnitors Trust of the Indemnitors’ its assumption of the defense thereof shall be at the expense of Indemnitee unless unless:
(ai) the employment by Such retention (or continued retention) of counsel by Indemnitee has been authorized or consented to by the Indemnitors, Trust;
(bii) the Counsel employed by Indemnitee shall have reasonably concluded that there is or may be a conflict of interest between the Indemnitors Indemnitee and the Trust with respect to such action, in which event counsel employed by Indemnitee also shall be entitled to participate in the conduct of the defense of Indemnitee in connection with such actionClaim;
(iii) The counsel retained by the Trust to assume the defense of Indemnitee in such proceeding shall also be representing in such action the Trust and/or one or more other parties; such counsel shall have concluded that there is an actual conflict of interest between Indemnitee and the one or more of such other parties (including, (c) if applicable, the Trust); and within 10 business days after the Trust is notified of such Proceeding seeks penalties conflict, separate counsel shall have been retained by the Trust to represent either the party or other relief against the Indemnitee parties with respect to which the Indemnitors could not provide monetary indemnification to the whom there is such conflict of interest or Indemnitee (in which case such as injunctive relief or incarcerationcounsel shall be selected by Indemnitee and approved by the Trust, whose approval shall not be unreasonably withheld); or
(iv) or (d) the Indemnitors The Trust shall not in fact have employed retained counsel to assume the defense of Indemnitee in connection with such action, in . In each of which cases the above cases, the fees and disbursements expenses of counsel employed by Indemnitee shall be at the expense of the Indemnitors. Trust.
(c) The Indemnitors Trust shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Indemnitors, or as to which Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) above.
(C) The Indemnitors shall not be liable required to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action or claim Claim effected without the Indemnitors’ Trust's written consent. The Indemnitors Trust shall not settle any action or claim Claim in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s 's written consent. Neither the Indemnitors Trust nor Indemnitee will shall unreasonably withhold or delay consent to any such proposed such settlement.
Appears in 1 contract
Notification and Defense of Claims. The Indemnitee agrees promptly to notify the Indemnitors Indemnitor in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but the failure so to notify the Indemnitors Indemnitor will not relieve the Indemnitors Indemnitor from any liability that the Indemnitors Indemnitor may have to Indemnitee under this Agreement unless the Indemnitors are materially prejudiced therebyIndemnitor can establish that such omission to notify resulted in actual and material prejudice to which it cannot be reversed or otherwise eliminated without any material adverse effect on the Indemnitor. With respect to any such Proceeding as to which Indemnitee notifies the Indemnitors Indemnitor of the commencement thereof:
(A) The Indemnitors Indemnitor will be entitled to participate therein at their its own expense.
(B) Except as otherwise provided below, the Indemnitors Indemnitor will be entitled to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Indemnitors Indemnitor to Indemnitee of the Indemnitors’ Indemnitor’s election so to assume the defense thereof, the Indemnitors Indemnitor will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. The Indemnitee shall have the right to employ IndemniteeXxxxxxxxxx’s own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors Indemnitor of the Indemnitors’ Indemnitor’s assumption of the defense thereof shall be at the expense of Indemnitee unless (a) the employment by of counsel by the Indemnitee has been authorized by the IndemnitorsIndemnitor, (b) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitors Indemnitor and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors Indemnitor could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors Indemnitor shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the IndemnitorsIndemnitor. The Indemnitors Indemnitor shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the IndemnitorsIndemnitor, or as to which the Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against the Indemnitee of the type referred to in clause (c) above.
(C) The Indemnitors Indemnitor shall not be liable to indemnify the Indemnitee under this Agreement for any amounts paid in settlement of any action or claim effected without the Indemnitors’ Indemnitor’s written consent. The Indemnitors Indemnitor shall not settle any action or claim in any manner that would impose any penalty or limitation on the Indemnitee without the Indemnitee’s written consent. Neither the Indemnitors Indemnitor nor Indemnitee will unreasonably withhold or delay consent to any proposed settlement.
Appears in 1 contract
Samples: Indemnification Agreement (American Homes 4 Rent, L.P.)
Notification and Defense of Claims. The Not later than thirty (30) days after receipt by Indemnitee agrees promptly of notice of the commencement of any action, suit or proceeding, Indemnitee will, if a claim in respect thereof is to be made against the Company under this Agreement, notify the Indemnitors Company in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, the commencement thereof; but the failure omission to so to notify the Indemnitors Company will not relieve the Indemnitors Company from any liability that the Indemnitors which it may have to Indemnitee otherwise than under this Agreement unless the Indemnitors are materially prejudiced therebyAgreement. With respect to any such Proceeding action, suit or proceeding as to which Indemnitee notifies the Indemnitors Company of the commencement thereof:
(Aa) The Indemnitors the Company will be entitled to participate therein at their its own expense.;
(Bb) Except except as otherwise provided below, to the Indemnitors extent that it may wish, the Company jointly with any other indemnifying party similarly notified will be entitled to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Indemnitors Company to Indemnitee of the Indemnitors’ its election so to assume the defense thereof, the Indemnitors Company will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own its counsel in such Proceedingaction, suit or proceeding but the fees and disbursements of such counsel all Expenses incurred after notice from the Indemnitors of the Indemnitors’ assumption of the defense thereof shall be at the expense of Indemnitee unless unless: (ai) the employment by of counsel by Indemnitee has been authorized in writing by the Indemnitors, Chief Executive Officer of the Company or his designee; (bii) the Indemnitee Company and its counsel shall each have reasonably concluded determined in their reasonable discretion that there may be is a meaningful conflict of interest between the Indemnitors Company and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against action and the Indemnitee with respect Company does not retain an independent second counsel to which the Indemnitors could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) represent Indemnitee; or (diii) the Indemnitors Company shall not in fact have employed refused to employ counsel to assume the defense of such actionaction within thirty (30) days after proper notice has been received, in each of which cases the fees and disbursements expenses of Indemnitee's separate counsel shall be at the expense of the IndemnitorsCompany only until the Company elects to assume or resume the defense of Indemnitee. The Indemnitors Company shall not be entitled obligated to assume pay for the defense reasonable fees and expenses of any Proceeding brought by or on behalf of the Indemnitors, or as more than one separate counsel to which represent Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or and all other relief against Indemnitee of the type referred to in clause indemnitees; and
(c) above.
(C) The Indemnitors the Company shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action or claim effected without the Indemnitors’ its written consent. The Indemnitors Company shall be permitted to settle any action except that it shall not settle any action or claim in any manner that which would impose any penalty or limitation or provide any admission of liability on Indemnitee without Indemnitee’s 's written consent. Neither the Indemnitors Company nor Indemnitee will unreasonably withhold or delay its consent to any proposed settlement.
Appears in 1 contract
Notification and Defense of Claims. The (a) If Indemnitee agrees promptly to notify receives notice, otherwise than from the Indemnitors in writing upon being served with any summonsCompany, citation, subpoena, complaint, indictment, informationthat Indemnitee is or will be made, or other document relating is threatened to be made, a party to any Proceeding or matter in respect of which may be subject Indemnitee intends to seek indemnification or advancement of Expenses covered hereunder, but the failure so to Indemnitee must promptly notify the Indemnitors Company in writing of the nature and, to Indemnitee's knowledge, status of that Proceeding. If this Section 4(a) requires Indemnitee to give such a notice, but Indemnitee fails to do so, that failure will not relieve the Indemnitors Company from any liability that the Indemnitors obligations the Company may have to indemnify Indemnitee under this Agreement unless the Indemnitors are materially prejudiced thereby. With Company can establish that the failure has resulted in actual prejudice to the Company.
(b) Except as this Section 4(b) otherwise provides below, in the case of any Proceeding in respect to any such Proceeding as to of which Indemnitee notifies the Indemnitors of the commencement thereofseeks indemnification hereunder:
(A1) The Indemnitors the Company and any Related Enterprise that also may be obligated to indemnify Indemnitee in respect of that Proceeding will be entitled to participate therein at their its own expense.expense in that Proceeding;
(B2) Except as otherwise provided belowthe Company or that Related Enterprise, the Indemnitors or either of them, will be entitled to assume the defense thereofof all Claims, with counsel other than (A) Company Claims, if any, and (B) other Claims, if any, as to which Indemnitee shall reasonably satisfactory reach the conclusion clause (3) of the next sentence describes, in that Proceeding against Indemnitee by prompt written notice of that election to Indemnitee. After notice from ; and
(3) if clause (2) above entitles the Indemnitors to Indemnitee of the Indemnitors’ election so Company or that Related Enterprise to assume the defense thereofof any of those Claims and it delivers to Indemnitee notice of that assumption under clause (2), the Indemnitors Company will not be liable to Indemnitee under this Agreement hereunder for any fees or expenses of legal or other expenses subsequently incurred by counsel for Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided belowwhich Indemnitee incurs after Indemnitee receives that notice. Indemnitee shall will have the right to employ Indemnitee’s 's own legal counsel in such that Proceeding, but but, as clause (3) of the preceding sentence provides, will bear the fees and disbursements expenses of such that counsel incurred after notice from the Indemnitors of the Indemnitors’ assumption of the defense thereof shall be at the expense of Indemnitee unless unless:
(a1) the employment by counsel by Company has authorized Indemnitee has been authorized by the Indemnitors, in writing to retain that counsel;
(b2) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitors and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors Company shall not in fact within a reasonable period of time actually have employed counsel to assume the defense of such action, in each those Claims; or
(3) Indemnitee shall have (A) reasonably concluded that a conflict of which cases interest may exist between Indemnitee and the fees and disbursements of counsel shall be at the expense of the Indemnitors. The Indemnitors shall not be entitled Company as to assume the defense of any Proceeding brought by one or on behalf more of those Claims and (B) communicated that conclusion to the Indemnitors, or as to which Indemnitee shall have reached the conclusion specified Company in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause writing.
(c) above.
(C) The Indemnitors shall Company will not be liable obligated hereunder to, or to cause another Company Entity to, indemnify Indemnitee under this Agreement for against or hold Indemnitee harmless from and in respect of any amounts paid, or agreed to be paid by Indemnitee in settlement of any action or claim effected Claim against Indemnitee which Indemnitee effects without the Indemnitors’ Company's prior written consent. The Indemnitors shall Company will not settle any action or claim Claim against Indemnitee in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s 's prior written consent. Neither the Indemnitors Company nor Indemnitee will unreasonably delay or withhold or delay consent to any proposed settlementsuch settlement the other party proposes to effect.
Appears in 1 contract
Notification and Defense of Claims. The (a) If Indemnitee agrees promptly to notify receives notice, otherwise than from the Indemnitors in writing upon being served with any summonsCompany, citation, subpoena, complaint, indictment, informationthat Indemnitee is or will be made, or other document relating is threatened to be made, a party to any Proceeding or matter in respect of which may be subject Indemnitee intends to seek indemnification or advancement of Expenses covered hereunder, but the failure so to Indemnitee must promptly notify the Indemnitors Company in writing of the nature and, to Indemnitee's knowledge, status of that Proceeding. If this Section 4(a) requires Indemnitee to give such a notice, but Indemnitee fails to do so, that failure will not relieve the Indemnitors Company from any liability that the Indemnitors obligations the Company may have to indemnify Indemnitee under this Agreement Agreement, unless the Indemnitors are materially prejudiced thereby. With Company can establish that the failure has resulted in actual prejudice to the Company.
(b) Except as this Section 4(b) otherwise provides below, in the case of any Proceeding in respect to any such Proceeding as to of which Indemnitee notifies the Indemnitors of the commencement thereofseeks indemnification hereunder:
(A1) The Indemnitors the Company and any Related Enterprise that also may be obligated to indemnify Indemnitee in respect of that Proceeding will be entitled to participate therein at their its own expense.expense in that Proceeding;
(B2) Except as otherwise provided belowthe Company or that Related Enterprise, the Indemnitors or either of them, will be entitled to assume the defense thereofof all Claims, with counsel other than (A) Company Claims, if any, and (B) other Claims, if any, as to which Indemnitee shall reasonably satisfactory reach the conclusion clause (3) of the next sentence describes, in that Proceeding against Indemnitee by prompt written notice of that election to Indemnitee. After notice from ; and
(3) if clause (2) above entitles the Indemnitors to Indemnitee of the Indemnitors’ election so Company or that Related Enterprise to assume the defense thereofof any of those Claims and it delivers to Indemnitee notice of that assumption under clause (2), the Indemnitors Company will not be liable to Indemnitee under this Agreement hereunder for any fees or expenses of legal or other expenses subsequently incurred by counsel for Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided belowwhich Indemnitee incurs after Indemnitee receives that notice. Indemnitee shall will have the right to employ Indemnitee’s 's own legal counsel in such that Proceeding, but but, as clause (3) of the preceding sentence provides, will bear the fees and disbursements expenses of such that counsel incurred after notice from the Indemnitors of the Indemnitors’ assumption of the defense thereof shall be at the expense of Indemnitee unless unless:
(a1) the employment by counsel by Company has authorized Indemnitee has been authorized by the Indemnitors, in writing to retain that counsel;
(b2) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitors and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors Company shall not in fact within a reasonable period of time actually have employed counsel to assume the defense of such action, in each those Claims; or
(3) Indemnitee shall have (A) reasonably concluded that a conflict of which cases interest may exist between Indemnitee and the fees and disbursements of counsel shall be at the expense of the Indemnitors. The Indemnitors shall not be entitled Company as to assume the defense of any Proceeding brought by one or on behalf more of those Claims and (B) communicated that conclusion to the Indemnitors, or as to which Indemnitee shall have reached the conclusion specified Company in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause writing.
(c) above.
(C) The Indemnitors shall Company will not be liable obligated hereunder to, or to cause another Company Entity to, indemnify Indemnitee under this Agreement for against or hold Indemnitee harmless from and in respect of any amounts paid paid, or agreed to be paid, by Indemnitee in settlement of any action or claim effected Claim against Indemnitee which Indemnitee effects without the Indemnitors’ Company's prior written consent. The Indemnitors shall Company will not settle any action or claim Claim against Indemnitee in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s 's prior written consent. Neither the Indemnitors Company nor Indemnitee will unreasonably delay or withhold or delay consent to any proposed settlementsuch settlement the other party proposes to effect.
Appears in 1 contract
Samples: Indemnification Agreement (Oceaneering International Inc)
Notification and Defense of Claims. The (a) Indemnitee agrees promptly to shall notify the Indemnitors Company in writing as soon as practicable of any Claim that could relate to an Indemnifiable Event or for which Indemnitee could seek Expense Advances, including a brief description (based upon being served with any summonsinformation then available to Indemnitee) of the nature of, citationand the facts underlying, subpoena, complaint, indictment, information, or other document relating such Claim. The failure by Indemnitee to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but the failure so to timely notify the Indemnitors will Company hereunder shall not relieve the Indemnitors Company from any liability hereunder except to the extent that the Indemnitors may have Company’s ability to Indemnitee under this Agreement unless participate in the Indemnitors are defense of such claim was materially prejudiced thereby. With respect to any and adversely affected by such Proceeding as to which Indemnitee notifies the Indemnitors of the commencement thereof:failure.
(Ab) The Indemnitors will Company shall be entitled to participate therein at their own expense.
(B) Except as otherwise provided below, in the Indemnitors will be entitled defense of any Claim relating to an Indemnifiable Event or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Indemnitors to ; provided that, if Indemnitee of the Indemnitors’ election so to assume the defense thereofbelieves, the Indemnitors will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred after consultation with counsel selected by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors of the Indemnitors’ assumption of the defense thereof shall be at the expense of Indemnitee unless that (a) the employment by use of counsel by Indemnitee has been authorized chosen by the IndemnitorsCompany to represent Indemnitee would present such counsel with an actual or potential conflict of interest, (b) the named parties in any such Claim (including any impleaded parties) include the Company or any subsidiary of the Company, on the one hand, and Indemnitee, on the other hand, and Indemnitee shall have reasonably concluded concludes, after consultation with counsel selected by Indemnitee, that there may be a conflict of interest between one or more legal defenses available to him or her that are different from or in addition to those available to the Indemnitors and the Indemnitee in the conduct Company or any subsidiary of the defense of such actionCompany, or (c) any such Proceeding seeks penalties or other relief against representation by such counsel would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee with respect to which the Indemnitors could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the Indemnitors. The Indemnitors shall not be entitled to assume the defense retain separate counsel (but not more than one law firm, plus, if applicable, local counsel in respect of any Proceeding brought by or on behalf of particular Claim) at the Indemnitors, or as to which Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) above.
(C) Company’s expense. The Indemnitors Company shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action or claim Claim relating to an Indemnifiable Event effected without the Indemnitors’ Company’s prior written consent. The Indemnitors Company shall not settle not, without the prior written consent of Indemnitee, effect any action settlement of any Claim relating to an Indemnifiable Event to which Indemnitee is or claim in any manner could have been a party unless such settlement involves solely the payment of money and includes a complete and unconditional release of Indemnitee from all liability on all claims that would impose any penalty or limitation on Indemnitee without Indemnitee’s written consentare the subject matter of such Claim. Neither the Indemnitors Company nor Indemnitee will shall unreasonably withhold withhold, condition, or delay its or his or her consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.
Appears in 1 contract
Notification and Defense of Claims. The (a) Indemnitee agrees promptly to shall notify the Indemnitors Company in writing as soon as practicable of any Claim that could relate to an Indemnifiable Event or for which Indemnitee could seek Expense Advances, including a brief description (based upon being served with any summonsinformation then available to Indemnitee) of the nature of, citationand the facts underlying, subpoena, complaint, indictment, information, or other document relating such Claim. The failure by Indemnitee to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but the failure so to timely notify the Indemnitors will Company hereunder shall not relieve the Indemnitors Company from any liability hereunder unless the Company’s ability to participate in the defense of such claim was materially and adversely affected by such failure, except that the Indemnitors may have Company shall not be liable to indemnify Indemnitee under this Agreement unless the Indemnitors are materially prejudiced thereby. With with respect to any judicial award in a Claim related to an Indemnifiable Event if the Company was not given a reasonable and timely opportunity to participate at its expense in the defense of such Proceeding as to which Indemnitee notifies the Indemnitors of the commencement thereof:action.
(Ab) The Indemnitors will Company shall be entitled to participate therein at their own expense.
(B) Except as otherwise provided below, in the Indemnitors will be entitled defense of any Claim relating to an Indemnifiable Event or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Indemnitors to ; provided that, if Indemnitee of the Indemnitors’ election so to assume the defense thereofbelieves, the Indemnitors will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred after consultation with counsel selected by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors of the Indemnitors’ assumption of the defense thereof shall be at the expense of Indemnitee unless that (a) the employment by use of counsel by Indemnitee has been authorized chosen by the IndemnitorsCompany to represent Indemnitee would present such counsel with an actual or potential conflict of interest, (b) the named parties in any such Claim (including any impleaded parties) include the Company or any subsidiary of the Company, on the one hand, and Indemnitee, on the other hand, and Indemnitee shall have reasonably concluded concludes, after consultation with counsel selected by Indemnitee, that there may be a conflict of interest between one or more legal defenses available to him that are different from or in addition to those available to the Indemnitors and the Indemnitee in the conduct Company or any subsidiary of the defense of such actionCompany, or (c) any such Proceeding seeks penalties or other relief against representation by such counsel would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee with respect to which the Indemnitors could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the Indemnitors. The Indemnitors shall not be entitled to assume the defense retain separate counsel (but not more than one law firm, plus, if applicable, local counsel in respect of any Proceeding brought by or on behalf of particular Claim) at the Indemnitors, or as to which Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) above.
(C) Company’s expense. The Indemnitors Company shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action or claim Claim relating to an Indemnifiable Event effected without the Indemnitors’ Company’s prior written consent. The Indemnitors Company shall not settle not, without the prior written consent of Indemnitee, effect any action settlement of any Claim relating to an Indemnifiable Event to which Indemnitee is or claim in any manner could have been a party unless such settlement involves solely the payment of money and includes a complete and unconditional release of Indemnitee from all liability on all claims that would impose any penalty or limitation on Indemnitee without Indemnitee’s written consentare the subject matter of such Claim. Neither the Indemnitors Company nor Indemnitee will shall unreasonably withhold withhold, condition, or delay its or his consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.
Appears in 1 contract
Notification and Defense of Claims. The Indemnitee agrees promptly to notify the Indemnitors Indemnitor in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but the failure so to notify the Indemnitors Indemnitor will not relieve the Indemnitors Indemnitor from any liability that the Indemnitors Indemnitor may have to Indemnitee under this Agreement unless the Indemnitors are Indemnitor is materially prejudiced thereby. With respect to any such Proceeding as to which Indemnitee notifies the Indemnitors Indemnitor of the commencement thereof:
(A) The Indemnitors Indemnitor will be entitled to participate therein at their its own expense.
(B) Except as otherwise provided below, the Indemnitors Indemnitor will be entitled to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Indemnitors Indemnitor to Indemnitee of the Indemnitors’ Indemnitor’s election so to assume the defense thereof, the Indemnitors Indemnitor will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors Indemnitor of the Indemnitors’ Indemnitor’s assumption of the defense thereof shall be at the expense of Indemnitee unless (a) the employment by of counsel by the Indemnitee has been authorized by the IndemnitorsIndemnitor, (b) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitors Indemnitor and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the Indemnitors. The Indemnitors shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Indemnitors, or as to which Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) above.
(C) The Indemnitors shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action or claim effected without the Indemnitors’ written consent. The Indemnitors shall not settle any action or claim in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s written consent. Neither the Indemnitors nor Indemnitee will unreasonably withhold or delay consent to any proposed settlement.,
Appears in 1 contract
Notification and Defense of Claims. The (a) Indemnitee agrees promptly to shall notify the Indemnitors Company in writing as soon as practicable of any Claim that could relate to an Indemnifiable Event or for which Indemnitee could seek Expense Advances, including a brief description (based upon being served with any summonsinformation then available to Indemnitee) of the nature of, citationand the facts underlying, subpoena, complaint, indictment, information, or other document relating such Claim. The failure by Indemnitee to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but the failure so to timely notify the Indemnitors will Company hereunder shall not relieve the Indemnitors Company from any liability that the Indemnitors may have to Indemnitee under this Agreement hereunder unless the Indemnitors are Company’s ability to participate in the defense of such claim was materially prejudiced thereby. With respect to any and adversely affected by such Proceeding as to which Indemnitee notifies the Indemnitors of the commencement thereof:failure.
(Ab) The Indemnitors will Company shall be entitled to participate therein at their own expense.
(B) Except as otherwise provided below, in the Indemnitors will be entitled defense of any Claim relating to an Indemnifiable Event or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Indemnitors to ; provided that, if Indemnitee of the Indemnitors’ election so to assume the defense thereofbelieves, the Indemnitors will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred after consultation with counsel selected by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors of the Indemnitors’ assumption of the defense thereof shall be at the expense of Indemnitee unless that (a) the employment by use of counsel by Indemnitee has been authorized chosen by the IndemnitorsCompany to represent Indemnitee would present such counsel with an actual or potential conflict of interest, (b) the named parties in any such Claim (including any impleaded parties) include the Company or any Subsidiary of the Company, on the one hand, and Indemnitee, on the other hand, and Indemnitee shall have reasonably concluded concludes, after consultation with counsel selected by Indemnitee, that there may be a conflict of interest between one or more legal defenses available to him that are different from or in addition to those available to the Indemnitors and the Indemnitee in the conduct Company or any Subsidiary of the defense of such action, Company or (c) any such Proceeding seeks penalties or other relief against representation by such counsel would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee with respect to which the Indemnitors could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the Indemnitors. The Indemnitors shall not be entitled to assume the defense retain separate counsel (but not more than one law firm, plus, if applicable, local counsel(s) in respect of any Proceeding brought by or on behalf of particular Claim) at the Indemnitors, or as to which Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) above.
(C) Company’s expense. The Indemnitors Company shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action or claim Claim relating to an Indemnifiable Event effected without the Indemnitors’ Company’s prior written consent. The Indemnitors Company shall not settle not, without the prior written consent of Indemnitee, effect any action settlement of any Claim relating to an Indemnifiable Event to which Indemnitee is or claim in any manner could have been a party unless such settlement involves solely the payment of money and includes a complete and unconditional release of Indemnitee from all liability on all claims that would impose any penalty or limitation on Indemnitee without Indemnitee’s written consentare the subject matter of such Claim. Neither the Indemnitors Company nor Indemnitee will shall unreasonably withhold withhold, condition, or delay its or his consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.
Appears in 1 contract
Samples: Indemnification Agreement (Digital Media Solutions, Inc.)
Notification and Defense of Claims. The Indemnitee agrees promptly to notify the Indemnitors Indemnitor in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but the failure so to notify the Indemnitors Indemnitor will not relieve the Indemnitors Indemnitor from any liability that the Indemnitors Indemnitor may have to Indemnitee under this Agreement unless the Indemnitors are materially prejudiced therebyIndemnitor can establish that such omission to notify resulted in actual and material prejudice to which it cannot be reversed or otherwise eliminated without any material negative effect on the Indemnitor. With respect to any such Proceeding as to which Indemnitee notifies the Indemnitors Indemnitor of the commencement thereof:
(A) The Indemnitors Indemnitor will be entitled to participate therein at their its own expense.
(B) Except as otherwise provided below, the Indemnitors Indemnitor will be entitled to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Indemnitors Indemnitor to Indemnitee of the Indemnitors’ Indemnitor’s election so to assume the defense thereof, the Indemnitors Indemnitor will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ IndemniteeXxxxxxxxxx’s own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors Indemnitor of the Indemnitors’ Indemnitor’s assumption of the defense thereof shall be at the expense of Indemnitee unless (a) the employment by of counsel by the Indemnitee has been authorized by the IndemnitorsIndemnitor, (b) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitors Indemnitor and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors Indemnitor could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors Indemnitor shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the IndemnitorsIndemnitor. The Indemnitors Indemnitor shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the IndemnitorsIndemnitor, or as to which the Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against the Indemnitee of the type referred to in clause (c) above.
(C) The Indemnitors Indemnitor shall not be liable to indemnify the Indemnitee under this Agreement for any amounts paid in settlement of any action or claim effected without the Indemnitors’ Indemnitor’s written consent. The Indemnitors Indemnitor shall not settle any action or claim in any manner that would impose any penalty or limitation on the Indemnitee without the Indemnitee’s written consent. Neither the Indemnitors Indemnitor nor Indemnitee will unreasonably withhold or delay consent to any proposed settlement.
Appears in 1 contract
Samples: Indemnification Agreement (Stirling Hotels & Resorts, Inc.)
Notification and Defense of Claims. The (a) Indemnitee agrees promptly to shall notify the Indemnitors Company in writing as soon as practicable of any Claim that could relate to an Indemnifiable Event or for which Indemnitee could seek Expense Advances, including a brief description (based upon being served with any summonsinformation then available to Indemnitee) of the nature of, citationand the facts underlying, subpoena, complaint, indictment, information, or other document relating such Claim. The failure by Indemnitee to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but the failure so to timely notify the Indemnitors will Company hereunder shall not relieve the Indemnitors Company from any liability that the Indemnitors may have to Indemnitee under this Agreement hereunder unless the Indemnitors are Company’s ability to participate in the defense of such claim was materially prejudiced thereby. With respect to any and adversely affected by such Proceeding as to which Indemnitee notifies the Indemnitors of the commencement thereof:failure.
(Ab) The Indemnitors will Company shall be entitled to participate therein at their own expense.
(B) Except as otherwise provided below, in the Indemnitors will be entitled defense of any Claim relating to an Indemnifiable Event or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Indemnitors to ; provided that, if Indemnitee of the Indemnitors’ election so to assume the defense thereofbelieves, the Indemnitors will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred after consultation with counsel selected by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors of the Indemnitors’ assumption of the defense thereof shall be at the expense of Indemnitee unless that (a) the employment by use of counsel by Indemnitee has been authorized chosen by the IndemnitorsCompany to represent Indemnitee would present such counsel with an actual or potential conflict of interest, (b) the named parties in any such Claim (including any impleaded parties) include the Company or any Subsidiary of the Company, on the one hand, and Indemnitee, on the other hand, and Indemnitee shall have reasonably concluded concludes, after consultation with counsel selected by Indemnitee, that there may be a conflict of interest between one or more legal defenses available to him that are different from or in addition to those available to the Indemnitors and the Indemnitee in the conduct Company or any Subsidiary of the defense of such actionCompany, or (c) any such Proceeding seeks penalties or other relief against representation by such counsel would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee with respect to which the Indemnitors could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the Indemnitors. The Indemnitors shall not be entitled to assume the defense retain separate counsel (but not more than one law firm, plus, if applicable, local counsel in respect of any Proceeding brought by or on behalf of particular Claim) at the Indemnitors, or as to which Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) above.
(C) Company’s expense. The Indemnitors Company shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action or claim Claim relating to an Indemnifiable Event effected without the Indemnitors’ Company’s prior written consent. The Indemnitors Company shall not settle not, without the prior written consent of Indemnitee, effect any action settlement of any Claim relating to an Indemnifiable Event to which Indemnitee is or claim in any manner could have been a party unless such settlement involves solely the payment of money and includes a complete and unconditional release of Indemnitee from all liability on all claims that would impose any penalty or limitation on Indemnitee without Indemnitee’s written consentare the subject matter of such Claim. Neither the Indemnitors Company nor Indemnitee will shall unreasonably withhold withhold, condition, or delay its or his consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.
Appears in 1 contract
Notification and Defense of Claims. The Indemnitee agrees promptly to notify the Indemnitors Indemnitor in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but the failure so to notify the Indemnitors Indemnitor will not relieve the Indemnitors Indemnitor from any liability that the Indemnitors Indemnitor may have to Indemnitee under this Agreement unless the Indemnitors are Indemnitor is materially prejudiced thereby. With respect to any such Proceeding as to which Indemnitee notifies the Indemnitors Indemnitor of the commencement thereof::
(Aa) The Indemnitors Indemnitor will be entitled to participate therein at their its own expense.
(Bb) Except as otherwise provided below, the Indemnitors Indemnitor will be entitled to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Indemnitors Indemnitor to Indemnitee of the Indemnitors’ Indemnitor’s election so to assume the defense thereof, the Indemnitors Indemnitor will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors Indemnitor of the Indemnitors’ Indemnitor’s assumption of the defense thereof shall be at the expense of Indemnitee unless (a) the employment by of counsel by Indemnitee has been authorized by the IndemnitorsIndemnitor, (b) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitors Indemnitor and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors Indemnitor could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors Indemnitor shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the IndemnitorsIndemnitor. The Indemnitors Indemnitor shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the IndemnitorsIndemnitor, or as to which Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) above.
(Cc) The Indemnitors Indemnitor shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action or claim effected without the Indemnitors’ Indemnitor’s written consent. The Indemnitors Indemnitor shall not settle any action or claim in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s written consent. Neither the Indemnitors Indemnitor nor Indemnitee will unreasonably withhold or delay consent to any proposed settlement.
Appears in 1 contract
Notification and Defense of Claims. The (a) Indemnitee agrees promptly to shall notify the Indemnitors Company in writing as soon as practicable of any Claim made in writing that could relate to an Indemnifiable Event or for which Indemnitee could seek Expense Advances, including a brief description (based upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating information then available to any Proceeding or matter which may be subject Indemnitee) of the nature of such Claim. The failure by Indemnitee to indemnification or advancement of Expenses covered hereunder, but the failure so to timely notify the Indemnitors will Company hereunder shall not relieve the Indemnitors Company from any liability that the Indemnitors may have to Indemnitee under this Agreement hereunder unless the Indemnitors are Company’s ability to participate in the defense of such claim was materially prejudiced thereby. With respect to any and adversely affected by such Proceeding as to which Indemnitee notifies the Indemnitors of the commencement thereof:failure.
(Ab) The Indemnitors will Company shall be entitled to participate therein at their own expense.
(B) Except as otherwise provided below, in the Indemnitors will be entitled defense of any Claim relating to an Indemnifiable Event or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Indemnitors to ; provided that, if Indemnitee of the Indemnitors’ election so to assume the defense thereofbelieves, the Indemnitors will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred after consultation with counsel selected by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors of the Indemnitors’ assumption of the defense thereof shall be at the expense of Indemnitee unless that (a) the employment by use of counsel by Indemnitee has been authorized chosen by the IndemnitorsCompany to represent Indemnitee would present such counsel with an actual or potential conflict of interest, (b) the named parties in any such Claim (including any impleaded parties) include the Company or any subsidiary of the Company, on the one hand, and Indemnitee, on the other hand, and Indemnitee shall have reasonably concluded concludes, after consultation with counsel selected by Indemnitee, that there may be a conflict of interest between one or more legal defenses available to him that are different from or in addition to those available to the Indemnitors and the Indemnitee in the conduct Company or any subsidiary of the defense of such actionCompany, or (c) any such Proceeding seeks penalties or other relief against representation by such counsel would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee with respect to which the Indemnitors could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the Indemnitors. The Indemnitors shall not be entitled to assume the defense retain separate counsel (but not more than one law firm, plus, if applicable, local counsel in respect of any Proceeding brought by or on behalf of particular Claim) at the Indemnitors, or as to which Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) above.
(C) Company’s expense. The Indemnitors Company shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action or claim Claim relating to an Indemnifiable Event effected without the Indemnitors’ Company’s prior written consent. The Indemnitors Company shall not settle not, without the prior written consent of Indemnitee, effect any action settlement of any Claim relating to an Indemnifiable Event to which Indemnitee is or claim in any manner could have been a party unless such settlement involves solely the payment of money and includes a complete and unconditional release of Indemnitee from all liability on all claims that would impose any penalty or limitation on Indemnitee without Indemnitee’s written consentare the subject matter of such Claim. Neither the Indemnitors Company nor Indemnitee will shall unreasonably withhold withhold, condition, or delay its or his consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee. In no event shall Indemnitee be required to waive, prejudice or limit attorney-client privilege or work-product protection or other applicable privilege or protection.
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Notification and Defense of Claims. The Indemnitee agrees promptly (a) As used in this Section, any Party seeking indemnification pursuant to this Section is referred to as an “indemnified party” and any Party from whom indemnification is sought pursuant to this Section is referred to as an “indemnifying party.” An indemnified party which proposes to assert the right to be indemnified under this Section will submit a written demand for indemnification setting forth in summary form the facts as then known which form the basis for the claim for indemnification. With respect to claims based on actions by third parties, an indemnified party will, within thirty (30) days after the receipt of notice of the commencement of any claim, action, suit or proceeding against it in respect of which a claim for indemnification is to be made against an indemnifying party, notify the Indemnitors indemnifying party in writing upon being served with any summonsof the commencement of such claim, citationaction, subpoenasuit or proceeding, complaintenclosing a copy of all papers served; provided, indictmenthowever, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder, but that the failure to so to notify the Indemnitors indemnifying party of any such claim, action, suit or proceeding will not relieve the Indemnitors indemnifying party from any liability that the Indemnitors which it may have to Indemnitee under this Agreement unless the Indemnitors are materially indemnified party, except to the extent that the indemnifying party is prejudiced therebyby the failure to be so notified. With respect Thereafter, the indemnified party will deliver to any the indemnifying party, within twenty (20) days after receipt by the indemnified party, copies of all further notices relating to such Proceeding as to which Indemnitee notifies the Indemnitors of the commencement thereof:claim.
(Ab) The Indemnitors If a third-party claim is made for which an indemnified party is entitled to indemnification pursuant to this Section, the indemnifying party will be entitled to participate therein at their own expense.
(B) Except as otherwise in the defense of such claim and, if the indemnifying party so chooses, and provided belowthat it acknowledges its obligation to indemnify the indemnified party, to assume primary responsibility for the Indemnitors will be entitled defense of such claim with counsel selected by the indemnifying party and not reasonably objected to by the indemnified party. Should the indemnifying party assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Indemnitors to Indemnitee of the Indemnitors’ election so to assume the defense thereofsuch claim, the Indemnitors indemnifying party will not be liable to Indemnitee under this Agreement the indemnified party for any legal or other expenses subsequently incurred by Indemnitee the indemnified party in connection with the defense thereof other than reasonable costs of investigation such claim.
(c) If the indemnifying party assumes the defense of a third-party claim as set forth in Section 10.6(b), then (i) in no event will an indemnified party admit any liability with respect to, or as otherwise provided below. Indemnitee shall have settle, compromise or discharge, any such claim without the right indemnifying party’s prior written consent and (ii) each indemnified party will be entitled to employ Indemnitee’s own counsel in such Proceedingparticipate in, but the fees and disbursements of such counsel incurred after notice from the Indemnitors of the Indemnitors’ assumption of the defense thereof shall be at the expense of Indemnitee unless (a) the employment by counsel by Indemnitee has been authorized by the Indemnitorsnot control, (b) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitors and the Indemnitee in the conduct of the defense of such action, (c) such Proceeding seeks penalties or other relief against claim with its own counsel at its own expense. If the Indemnitee with respect to which the Indemnitors could indemnifying party does not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and disbursements of counsel shall be at the expense of the Indemnitors. The Indemnitors shall not be entitled to assume the defense of any Proceeding brought by or such claim, an indemnified party may defend such claim in a manner as it may deem appropriate (including without limitation settling such claim, after giving twenty (20) days prior written notice of such settlement to the indemnifying party, on behalf of such terms as the Indemnitors, or as to which Indemnitee shall have reached the conclusion specified in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) aboveindemnified party may deem appropriate).
(Cd) The Indemnitors shall not be liable to indemnify Indemnitee under this Agreement If any claim for any amounts paid in settlement of any action or claim effected without the Indemnitors’ written consent. The Indemnitors shall not settle any action or claim in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s written consent. Neither the Indemnitors nor Indemnitee will unreasonably withhold or delay consent indemnification is made with respect to any proposed settlementthird-party claim pursuant to this Section, (i) the party assuming primary responsibility for the defense of such claim will at all times keep the other party informed as to the status of such claim and (ii) the party not primarily responsible for the defense of such claim will cooperate fully with the other party in connection with such defense.
Appears in 1 contract
Notification and Defense of Claims. The Indemnitee agrees promptly to notify the Indemnitors Indemnitor in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Proceeding or matter which that may be subject to indemnification or advancement of Expenses covered hereunder, but the failure so to notify the Indemnitors Indemnitor will not relieve the Indemnitors Indemnitor from any liability that the Indemnitors Indemnitor may have to Indemnitee under this Agreement unless unless, and only to the Indemnitors are extent, the Indemnitor can establish that such omission to notify resulted in actual and material prejudice to which it cannot be reversed or otherwise eliminated without any material adverse effect on the Indemnitor and, in such a case, the Indemnitor shall be relieved of its indemnification obligation only to the extent it is so actually and materially prejudiced therebyprejudiced. With respect to any such Proceeding as to which Indemnitee notifies the Indemnitors Indemnitor of the commencement thereof:
(A) The Indemnitors will be entitled to participate therein at their own expense.
(B) Except as otherwise provided below, the Indemnitors will be entitled to Indemnitor shall assume the defense thereof, with counsel reasonably satisfactory to Indemnitee, without regard to whether a preliminary determination of Indemnitee’s ultimate entitlement to indemnification under this Agreement has been made, unless the Indemnitee provides notice to the Indemnitor that such assumption is not appropriate because (i) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitor and the Indemnitee in the conduct of the defense of such action, (ii) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitor could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration), or (iii) such Proceeding is brought against Indemnitee by the Indemnitor or any subsidiary of the Indemnitor. After notice from the Indemnitors Indemnitor to Indemnitee of the Indemnitors’ election so to assume Indemnitor’s assumption of the defense thereofof the applicable Proceeding, the Indemnitors Indemnitor will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation and cooperation or as otherwise provided below. The Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the fees and disbursements of such counsel incurred after notice from the Indemnitors Indemnitor of the Indemnitors’ Indemnitor’s assumption of the defense thereof shall be at the expense of Indemnitee unless (a) the employment by of counsel by the Indemnitee has been authorized by the IndemnitorsIndemnitor, (b) the Indemnitee shall have reasonably concluded has given Indemnitor notice that there may be a conflict of interest between the Indemnitors and the Indemnitee in the conduct Indemnitor’s assumption of the defense of such actionwould not be appropriate for the reasons set forth in clause (i), (ii) or (iii) above or (c) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitors could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors Indemnitor shall not in fact have employed counsel to assume the defense of such actionaction that is reasonably satisfactory to the Indemnitee, in each of which cases the fees and disbursements of counsel of Indemnitee shall be at the expense of the Indemnitors. Indemnitor.
(B) The Indemnitors Indemnitor’s assumption of the defense of a Proceeding shall not be deemed to be an acknowledgement by the Indemnitor that any loss and liability suffered by Indemnitee and Expenses of Indemnitee incurred in connection with such Proceeding are indemnifiable by the Indemnitor under paragraph 2 of this Agreement. The Determination of whether Indemnitee is entitled to assume indemnification with respect to such Proceeding, if a Determination is required in the defense of any Proceeding brought by or on behalf of circumstances, shall be made in accordance with the Indemnitors, or as to which Indemnitee shall have reached the conclusion specified procedures set forth in clause (b) above, or which involves penalties or other relief against Indemnitee of the type referred to in clause (c) aboveparagraph 4.
(C) The Indemnitors Indemnitor shall not be liable to indemnify the Indemnitee under this Agreement for any amounts paid in settlement of any action or claim effected without the Indemnitors’ Indemnitor’s written consent. The Indemnitors Indemnitor shall not settle any action or claim in any manner that would impose any penalty or limitation on the Indemnitee (which the Company is not permitted to pay or for which it cannot provide indemnification) or agree to a settlement unless such settlement is for money damages only and also includes a full release of the Indemnitee, in each case, without the Indemnitee’s written consent. Neither Subject to the Indemnitors preceding sentence, neither the Indemnitor nor Indemnitee will unreasonably withhold or delay consent to any proposed settlementsettlement as referred to in the first sentence of this paragraph 7(C).
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